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Accident Compensation Cases

Foley v Accident Compensation Corporation (DC, 29/06/00)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
The issue in this appeal is whether the respondent's decision of 6 April 1999 to determine that the appellant had a capacity for work, as that phrase is defined in section 51(2) of the 1992 Act, was correct. 
Having heard from counsel and now considered their written submissions, I have come to the view that certain matters which have been raised in this appeal and which might be regarded as being fundamentals in both the Work capacity Assessment Procedure, as laid down in the Act, and the Appeal Procedure, as similarly laid down in the Act, need to be addressed. 
As a brief factual background, the appellant is now aged 51 years and suffered an injury to his back in October 1990. At the time of this injury he was employed as a watersider and had been so for the preceding 16 years. His injury did not occur at work. 
As a result of that injury he was unfit to return to his work and he commenced receiving weekly compensation. In July 1991 he underwent a lumbar laminectomy for a prolapsed intervertebral disc but that operation did not result in the appellant obtaining fitness to return to his work and he continued to receive weekly compensation. Various vocational rehabilitation initiatives were conducted from about 1993 onwards and there was some suggestion that the appellant's psychological state was impacting on his vocational rehabilitation. 
On 6 September 1996 he commenced a work trial with a furniture manufacturer and was able to work up to 20 hours a week. That employment ceased when there was a downturn in that work sector, although he did obtain another part-time job of a similar nature in August 1998. 
The appellant was engaged in that part-time employment with Galleon Woodware, working 2 hours per day 4 days per week, at the time the respondent determined to refer him to the Work Capacity Assessment Procedure in January 1999. 
An occupational assessment identified 11 potential job options and following that assessment the appellant was referred to Mr J C Theis, Orthopaedic Surgeon for a medical assessment. Mr Theis carried out that medical assessment on 5 March 1999 and reported that in his opinion the appellant had a capacity for work in 9 of the 11 job options that had been identified by the vocational assessor. 
On the basis of those vocational and medical assessor's reports the respondent made a determination on 6 April 1999 that the appellant had a capacity for work and advised him that his weekly compensation would cease in three months time. 
The appellant sought a review of that decision and instructed Mr Cadenhead to represent him for the purposes of that review. 
At that review hearing the appellant gave evidence, that evidence being in effect that he was neither vocationally nor medically equipped to undertake any of the job options that had been identified and reasons were given for that statement in respect of each job option. The appellant also gave evidence as to the lack of vocational rehabilitation which he contended had been the case for him. 
In his submissions to the Review Officer, Mr Cadenhead made two principal points and these were firstly, that the respondent had not equipped the appellant with skills to enable him to deal with his disability and that he had not received a level of vocational rehabilitation as was a pre-requisite under the Act. Secondly, Mr Cadenhead submitted that Mr Theis was not a specialist in the area that was required to be the case for a medical assessor and that he questioned Mr Theis' experience or interest in issues relating to disability management in the workplace or occupational rehabilitation. Mr Cadenhead identified that as being a requirement for a medical assessor as set out on page 15 of the Procedure. 
No evidence was adduced by the Corporation as to Mr Theis' qualifications and in his decision the Reviewer dealt with the matter as follows: 
“In relation to Mr Cadenhead's argument that Mr Theis is not a properly qualified medical assessor in tems of the Work Capacity Assessment Procedure, I note that the Procedure requires medical assessors who are medical specialists, to be registered with the New Zealand Medical Council, to hold a current practising certificate, to have an interest and proven work experience in issues relating to disability management in the work place or occupational rehabilitation and be Members of a recognised College. In Mr Theis' case, I accept that he is a registered specialist with a current practising certificate and a Member of a recognised College, in his case a Fellow of the Royal Australiasian College of Surgeons. In relation to his interest and proven work experience in issues relating to disability management in the work place or occupational rehabilitation, I am aware that Mr Theis is frequently asked to report to ACC on claimants' fitness for work and proposed vocational rehabilitation initiatives. I am satisfied that orthopaedic surgeons who frequently report to ACC have considerable expertise in the area of disability management and accordingly I find that Mr Theis has the appropriate qualifications and experience to perform work capacity assessments. I note that in the District Court decision of Curline (200/99), the medical assessment was performed by Mr J Talbot, Orthopaedic Surgeon, a specialist with similar experience to that of Mr Theis and in that case his assessment was accepted as appropriate and in accordance with the Work Capacity Assessment Procedure. ”
The outcome of that review hearing was that the Review Officer confirmed the respondent's decision that the appellant had a capacity for work. 
When the matter came forward on appeal Mr Cadenhead obtained leave to adduce medical evidence from Dr Hugh Burry relating to the appellant's medical condition and his physical capabilities and the opinion that he expresses is that the appellant is physically incapable of working 30 hours per week in any work situation. Dr Burry takes issue with Mr Theis' assessment. 
In written submissions to the Court, counsel for the appellant raised as his principal argument the submission that the appellant was not physically capable of working 30 hours per week in any position and following on from that he called into question again Mr Theis' credentials to be a medical assessor in terms of the qualifications that are required of such an assessor as contained on page 15 of the Procedure. 
In submissions in reply counsel for the respondent has principally relied on the Review Officer's findings as set out above but in addition he sought leave to produce a summary of Mr Theis' experience, as given by Mr Theis, and leave was so granted. 
In a letter dated 30 May 2000 to counsel for the respondent, Mr Theis stated as follows: 
“Thank you for your fax dated 30.5.2000 in relation to a medical report I carried out on Barry Foley dated 11 March 1999. 
Your question was regarding my interest and proven work experience in issues related to disability work management in the workplace or an interest in work experience and occupational rehabilitation. 
I am an Associate Professor of Orthopaedic Surgery at the University of Otago and Senior Consultant Orthopaedic Surgeon working for Health Care Otago. One of my interests is spinal surgery and I have a long experience assessing and managing patients with back pain including surgery. I have been providing the ACC with medical reports since 1988 and have written a total of 2,512 medical reports since. This includes at least 100 work capacity assessment reports. 
I believe I have extensive proven work experience in issues relating to disability management in and outside the workplace as well as rehabilitation following musculoskeletal injury and disease. 
Don't hesitate to contact me if you need any further information. ”
It is to be noted that that letter is from the Department of Orthopaedic Surgery, Otago Medical School, University of Otago. 
Against that factual background I propose to deal with this appeal as follows: 
An appeal to this Court against the decision of a Review Officer is an appeal by way of rehearing, that is stated as being so by section 158(2) of the Accident Insurance Act 1998. Section 159 of the Act enables the Court to hear any evidence that it thinks fit, thus reinforcing the fact that the Court hears the matter afresh and considers the evidence that was adduced before the Review Officer and any subsequent evidence that it may give leave to the parties to adduce. It makes its own independent findings on the evidence it hears and receives. That is not to say that it does not take account of findings of a Review Officer, particular findings where that Review Officer has heard and seen witnesses and has made findings of credibility. In such circumstances, this Court would be loath to interfere with such a finding. However that circumstance does not arise in this appeal. 
In the context of this appeal I find that the provisions of section 49 and 51 place an initial onus on the Corporation to establish that it has determined that a person has a capacity for work in accordance with the provisions of the Act. The Act sets out a procedure which the Corporation is required to follow and it is only if as a consequence of following that procedure that the evidence establishes that a person has a capacity for work as defined in section 51(2), that the Corporation can so determine that he has that capacity. 
Ordinarily the Corporation's evidence, as established from its file in the carrying out of the requirements of the Procedure, prima facie discharges that onus and the onus then shifts to the appellant to establish on balance that the Corporation's determination was wrong. However, I find that that shifting of onus does not apply until the Corporation has established, either by specific evidence for the purpose, or has tacit acceptance from an appellant by way of an appellant not raising any matter, that the various steps in the Procedure are not being called into question. 
In the circumstances of this appeal, counsel for the appellant, firstly at review and secondly in this appeal, has specifically put on question the acceptability of the medical assessor as to whether or not that assessor “Has interest and proven work experience in issues relating to disability management in the workplace, or occupational rehabilitation”
That is one of the four requirements of an assessor who is a medical specialist. There is no question that Mr Theis qualifies on the other three requirements in that he is a registered medical specialist with the New Zealand Medical Council, he has a current annual practising certificate, and he is a member of a recognised college. 
After this matter was put up by Mr Cadenhead at the Review Hearing, there was no attempt by the Corporation to “qualify” Mr Theis but rather the Review Officer took it upon himself to purport to qualify Mr Theis by stating as he did in the passage from his decision that I have set out above. 
As was submitted by Mr Cadenhead, the mere fact that Mr Theis has frequently been asked to report to the Corporation on claimant's fitness for work and proposed vocational rehabilitation initiatives I find is not sufficient, nor is the statement by the Review Officer that Orthopaedic Surgeons who frequently report to the Corporation have expertise in that particular area. That is wholly a matter of conjecture. 
As previously noted, counsel for the respondent elected to support the findings of the Review Officer and the only additional information that this Court was provided with was Mr Theis' letter set out above. I have to say that I am no further informed about Mr Theis' qualifications in the particular area that is required to be considered as a consequence of that letter. The only information is his belief that he has the necessary experience etc. This Court is not concerned with what Mr Theis believes, it is concerned with the facts upon which it can then make a value judgment as to whether he qualifies as an expert. 
I would have thought that at the very least a curriculum vitae would have been produced which addressed the particular area of speciality that the Court is concerned with, and detailed by fact and example what his experience was so that then the Court, considering those facts, could come to a decision as to whether he was so qualified. 
This whole matter is thrown into relief in this present case by reason firstly of Mr Cadehead's submissions and secondly by the medical reports from Dr Burry which call Mr Theis' findings into question. It should be noted that Dr Burry has provided an extremely impressive C.V. and I find he is well qualified in the field identified in the procedure. 
At its fundamental level, I have come to the conclusion that the respondent cannot establish that it has complied with the Procedure, which it is required to do, by reason of the fact that it cannot establish to the Court's satisfaction that the medical assessment has been carried out by a person who is appropriately qualified. That matter was put in issue by the appellant and I find that the onus, which is upon the respondent to discharge, has not been so discharged. 
In coming to that finding, I wish to emphasise that the Court is not contending or stating that Mr Theis is not so properly qualified, all that it is stating is it has not any evidence upon which it can come to a finding on the matter. 
As previously noted, the provisions of section 51(3) requires the assessment on which the Corporation relies to be carried out in accordance with the Procedure for the time being determined under section 50 of the Act. I have found that the Corporation cannot discharge the initial onus which is upon it that it has so complied and for that reason therefore, its decision to find that the appellant does have a capacity for work cannot stand. This is not a case where the Court should exercise its powers under section 164(2)(c) and therefore the consequence of this decision is that the respondent's determination that the appellant has a capacity for work is hereby revoked. 
The appellant is entitled to costs which I fix at $1,250.00 together with any costs associated with the producing of the evidence from Dr Burry. 

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