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Accident Compensation Cases

Adrian v Accident Compensation Corporation (DC, 06/07/01)

Judgment Text

Judge P F Barber
This is another case where the issue is whether the appellant has a capacity for work as defined in s 15 of the Act which reads: 
‘CAPACITY FOR WORK’---(1) ‘Capacity for work’, in relation to an insured, means the insured's capacity, having regard to the consequences of his or her personal injury, to engage in employment— 
For which he or she is suited by reason of experience, education, or training, or any combination of those things; and 
For 30 hours or more a week. 
In determining whether an insured has capacity for work, an insurer is not required to take into account— 
Any condition suffered by the insured that is not related to his or her personal injury; or 
Whether or not there are any employment opportunities existing in any employment for which the insured is then suited. ”
This case is an appeal from a 10 October 2000 decision of a Review Officer, Mr K Howell, finding that the respondent's determination that the appellant has the capacity to work full-time in six of seven occupations (referred to below and the exception being pilot/vehicle driver) to be correct. The decision of the Review Officer is thorough and well reasoned. It commences with helpful background paragraphs reading as follows: 
“What led to this review 
Mr Adrian had a claim accepted by the Corporation for a right knee injury occurring in November 1991. 
In December 1999 Mr Adrian was selected for the work capacity assessment procedure (WCAP). An occupational assessment was carried out by Ms Anne Potter who identified Mr Adrian as suitable to do 22 different occupations. A medical assessment was then done by Dr Christian who identified as Mr Adrian as only suitable to work full-time for 4 of those jobs. The Corporation then discovered that Dr Christian did not have the mandatory qualifications to do the medical assessment. A further assessment was carried out by Dr Robb. In his report of 16 March 2000 he identified Mr Adrian as suitable to work full-time as a baker's assistant, building caretaker, fork lift operator, general staff supervisor, pilot vehicle driver, transport clerk and wood products assembler. 
Based on Dr Robb's report, the Corporation, in a letter dated 23 May 2000, stated Mr Adrian had a capacity for work and gave notice of the cessation of his weekly compensation. This is the decision which is the subject of the review. 
A report dated 28 September 2000 was obtained from Dr Tait, consultant physician, which stated: 
‘In my opinion Mr Adrian's symptoms are consistent with the history given and the physical findings. The physical findings on 26 September 2000 were similar to those reported by Mr Graham Inglis in April 1996. 
In my opinion Mr Adrian is not fit for full time work as defined by the ACC 1992 Act this is supported by the fact that two work trials of return to proved to be unsuccessful [sic]. ’”
Further Background 
In particular, the appellant challenges the medical assessment that he was fit to work for 30 hours or more per week. 
The appellant suffered a right knee strain in November 1991. He was granted cover. Earnings compensation had been paid until ceased consequent upon the respondent's Work Capacity decision of 23 May 2000. 
Vocational rehabilitation has been provided by the ACC from 1994. The agreed objective of the appellant's rehabilitation plan was to achieve independence by securing employment. The appellant completed a work trial as a maintenance officer with Fairview Rest Home Ltd in mid-1999. He received a very positive reference from that hospital which I refer to in some detail below. 
The Work Capacity assessment commenced on 3 December 1999. An occupational assessment was completed by Anne Potter, an Occupational Assessor, on 16 December 1999. The assessment concluded that the appellant was suited for a wide range of occupations by reason of his experience, training and transferable skills. The assessment was very positive about the appellant's capabilities. 
In 1991 the appellant had been treated with a course of physiotherapy. An arthroscopy revealed nothing of note other than some cartilage abrasion which was treated and the swelling of his knee was resolved. 
In April 1996 Mr Inglis, Orthopaedic Surgeon, saw the appellant, reviewed the medical history, and reported to the ACC. Once again, on clinical examination, there was little pathology or abnormality of any note. Mr Inglis concluded with a diagnosis of “non-specific anterior knee pain”
Mr Inglis then noted that at the appellant's age, and given the time that he had been out of the workforce, he would have difficulty, finding employment. However, from a medical perspective he concluded: 
“If a job could be found for him, he would be fit for many forms of work, sales work, clerical work, jobs where he can spend short periods standing, sitting, walking, without sustained long periods of standing or walking. ”
On 16 March 2000 Dr Robb, Occupational Physician and Senior Lecturer in Occupational Medicine, completed a medical assessment. His clinical findings accorded with those of Mr Inglis when he had reported in 1996. Dr Robb had discussed with the appellant the two work trials undertaken in 1999 and reported: 
“Mr Adrian has had two work trials. One was in light engineering / sheet metal work, but he found that bending his knee in the job aggravated his knee pain. The other was as a handyman/groundsman for a rest home. However, again he found that bending and particularly crouching aggravated his knee pain. Mr Adrian has applied for several jobs, but finds that his age (62) works against him, and also finds that some employers are reluctant to take him on because of history of an ACC injury. He feels that there are many jobs in which he could work, particularly where no knee bending or crouching was required. ”
Of his clinical examination he wrote: 
“On examination today, Mr Adrian is a slim 62 year old Caucasian man, who walks with a very slight limp, favouring his right knee. There is no muscle wasting in his right quadriceps compared to the left. There is normal and pain free range of motion in the right knee and there is no crepitus on movement of the knee joint. There is no patello-femoral tenderness in lateral and medial ligaments are normal. McMurray's test for meniscal damage is negative. There is no sign of any effusion in the knee. There is no evidence of cruciate ligament laxity. There are no tender areas on palpitation of the knee. ”
Dr Robb concluded: 
“In summary, Mr Adrian gives a history of an injury to his knee in 1991, ever since which he has had recurrent right knee pain. As a result, he has limitations with regard to squatting, crouching, prolonged walking and heavy lifting. ”
On the basis of these findings, Dr Robb concluded that the appellant was unfit for 17 of the 24 jobs that the occupational assessment had identified, but that he was fit for the remaining seven, namely; baker's assistant, building caretaker, forklift operator, general staff supervisor, pilot or vehicle driver, transport clerk and wood products assembler. 
The findings of Dr Robb are consistent with the questionnaire completed by the appellant's general practitioner who, on 13 January 2000, had stated that the appellant did have a capacity for work with limitations, namely, “a job with standing and sitting options”. At the same time, he noted that the appellant was receiving no treatment or medication for his right knee complaint. In his most recent certificate on file (10 August 2000), albeit subsequent to the Work Capacity decision, that general practitioner certified the appellant as fit for work for 30 hours per week. 
The appellant was also seen by Mr Tait, a Consultant Physician, who reported on 28 September 2000. He concluded: 
“In my opinion, Mr Adrian's symptoms are consistent with the history given and the physical findings. The physical findings on 26 September were similar to those reported by Mr Graham Inglis in April 1996. ”
However, unlike Mr Inglis and Dr Robb, Dr Tait considered that the appellant was unfit for fulltime work. He wrote: 
“In my opinion, Mr Adrian is not fit for full time work as defined by the ACC 1992 Act. This is supported by the fact that two trials of return to [work] proved to be unsuccessful. ”
Unlike Dr Robb's assessment, Dr Tait does not address the specific employment options that were listed and described in the occupations assessment. 
The Letter from Fairview Hospital Ltd 
There was quite some reference to the 1 August 1999 letter of the manager of Fairview Hospital Ltd. Accordingly, I set it out in full as follows: 
“1 August 1999 
To Whom it May Concern 
Re: Murray Adrian 
Murray spent six weeks at Fairview Hospital on work experience, working alongside our maintenance officer. Murray fitted in very well with the team at Fairview and I found his standard of work outstanding. He was very fastidious in all his assignments, and would think nothing of staying later to finish something he had commenced. 
Murray assisted in a variety of work, from building shelves, mowing lawns, preparing and making new lawns, pruning, gardening, cleaning out roof gutters, sealing roofs, collecting and removing rubbish. Murray was very reliable and punctual, and a pleasure to have on staff. 
I would not hesitate in recommending Murray for a similar position, as his honesty and trustworthiness and ability to complete assigned tasks without supervision are excellent attributes he has. His high level of general maintenance skills was clearly demonstrated in his time with us, and I wish Murray all the best for the future. 
J Holcroft 
Manager ”
A Summary of the Submissions for the Appellant 
Inter alia, Mr Hunt emphasised that the work-trial at Fairview Hospital was only for 18 hours per week i.e. six hours per day for three days a week, and that the above reference letter was not, and did not purport to be, a medical assessment or an assessment of the appellant's capacity to work, but was simply in context an observation regarding the limited tasks undertaken at that hospital by the appellant. Mr Hunt referred to the appellant's evidence that he had real difficulty in completing those rest home (hospital) tasks and, in particular, in being available for work of that kind for 30 hours a week and that the work at the hospital caused him much pain and discomfort. 
Also, of course, Mr Hunt focused on the reports from Mr Tait and Mr Tait's assessment of the appellant not having capacity to work. Mr Hunt submitted that the Review Officer wrongly dismissed the assessment of Mr Tait and erred in placing relevance on the above reference from the hospital. 
Mr Hunt referred to the wording of s 15 of the Act and submitted that it is the evidence of the appellant as to the effect on him of work which is relevant, that there is ample evidence that the extent of the appellant's practical incapacity was “extensive and pervasive”, and that the appellant's subjective assessment is also the assessment of Dr Tait as a qualified assessor. He submits that, in any case, Mr Tait's assessment should have been referred to that of Dr Robb. 
Mr Hunt also filed detailed typed submissions in reply to those of Ms Ahern. He put it to be common ground that by reason of the said personal injury there are serious limitations to the appellant's physical abilities, particularly in relation to standing, sitting, walking and, consequently for work of the type the appellant had previously been engaged in. There was much reference to the medical reports. As Mr Hunt points out, there is a fundamental conflict between the medical evidence from Dr Robb in completing the medical assessment and that of Dr Tait in forming his view as to the capacity of the appellant for work. 
Mr Hunt again referred to the submission for the respondent that the appellant's work trials and, in particular, that at the said Fairview Hospital, were successful and he referred to the appellant's evidence that the work trials resulted in much pain and discomfort to the appellant's right knee. He put it that the evidence of the work trials merely shows that the appellant had perseverance and not that he had the capacity to work 30 hours or more per week. 
Mr Hunt then spent some time dealing with the said proposed occupations of baker's assistant, building caretaker, forklift operator, transport clerk, general staff supervisor and woodworker — that of pilot vehicle driver having been mutually agreed as inappropriate. He submitted that all these jobs involve long periods of sitting or standing or walking, and so present grave performance difficulties for the appellant. 
Part of Mr Hunt's submissions read as follows: 
“The WCAP assessment is designed to determine the work that a person is suited to by reason of experience, education or training. The Court has ruled that ‘suited’ means ‘capable of doing’ from a ‘knowledge/ability’ perspective in which the person is also capable of doing from a physical perspective. The Court held in Kenyon v ARCIC [4/10/99] Judge Beattie DC Rotorua 278/99 that: 
‘The assessment procedure is designed to determine whether a person has the knowledge, capability and physical ability to undertake a particular type of work when the ingredients and requirements of that work have been identified, whether or not the person so assessed would ever actually be employed in the actual position which might be advertised. ’
While the test is whether there is a capacity to do a particular type of work it still must bear some relationship to the reality of the situation. In this instance, the assessment both of the skills, which Mr Adrian has, and his ability to apply himself to do certain tasks continuously for 30 hours a week in a full-time capacity is simply not correct. See Alsig 5/2001 para 43 page 13: 
‘I take the view that the application of the WCAP is always subject to an overall judgment based on reality or common sense. ’
Also note that case refers to the failure to comply with Section 100 (2) of the Act. In this instance there is no reference to occupational deafness that Mr Adrian refers to in Mr Robb's report. 
Whilst the position in a number of cases has been that an assessment properly carried out must be accepted by the Court and the respondent, it is clear that there is an obligation on the Court to test the conclusions and not merely blindly accept unrealistic or absurd results (see Alsig 5/2000). 
The Review Officer has made references to Fitzpatrick 5/2000 as authority for the fact that the District Court would not interfere with the assessment of a properly qualified assessor or substitute the views of the appellant. That was not a matter of preference. It was the Court's view that it was constrained in that way by the legislation. However, it is submitted that the tests must still produce a realistic and sensible result. ”
Mr Hunt submitted that, at the age of 63 years, the appellant has a significant injury whereby he is unable to return to his previous type of work. With reference to the said six proposed categories of work, Mr Hunt submitted that they are all beyond the appellant's physical capacity and in most he has not got the necessary knowledge in any case, and also the appellant has some hearing problems. 
Mr Hunt submitted that when one looks at this injury situation overall, and taking into account all the medical evidence, it is simply not credible to find that the appellant has work capacity. 
Reasons for Decision 
Because I am in broad agreement with the submissions for the respondent I incorporate them into my reasoning below. 
I note that Mr Inglis, an orthopaedic surgeon, expressed the opinion as long ago as 1996 that the appellant was fit for work. I also observe that the said 1 August 1999 reference from the manager of Fairview Hospital hardly supports the appellant's evidence and submission that he does not have capacity for work. I realise that it relates to a working week for the appellant of only about 18 hours for six weeks. That reference refers to the appellant's standard of work as “outstanding” and is a glowing reference with reference to a variety of work “from building shelves, mowing lawns, preparing and making new lawns, pruning, gardening, cleaning out roof gutters, sealing roofs, collecting and removing rubbish”. It also refers to the appellant's “high level of general maintenance skills” having been clearly demonstrated. In my view, the work trial at the Fairview Rest Home did not fail as submitted for the appellant. 
That work trial seems to have been along the lines of a maintenance handyman, but Dr Robb has certified the appellant as having a capacity for work in several occupations which would be no more demanding than that at the rest home. 
I agree with the submission for the respondent that an important element of any medical assessment of capacity to work is to give specific attention to the range of occupations for which the person has the necessary skills, training or experience. That is what Dr Robb has done, but Dr Tait has not. On the face of it, Dr Tait is saying that the appellant is unfit for any work for 30 hours per week or more, however sedentary that work might be. Having regard to the fact that the appellant's injury is confined to his right knee, and that he has more or less a full range of movement in that knee, it is surprising that Dr Tait could conclude that there is no work at all which the appellant could not sustain for 30 hours per week. Also, that view is not shared by Dr Ross, Mr Inglis and, seemingly, the appellant's general practitioner. It does not matter that Dr Robb has not considered Dr Tait's views. The latter's first report was dated 28 September 2000, whereas Dr Robb had completed the medical assessment on 10 March 2000. 
Miss Potter's Work Capacity Assessment (occupational) is very extensive and lists a variety of occupations. Dr Robb's medical assessment is clear, full, and objective. The appellant is able to walk or crouch, and I need to look at his capacity to work in an holistic manner. 
I particularly noted that the appellant did not seem to have particular hearing problems. In any case, that has not been established medically for present purposes, and would not seem to be relevant with regard to the WCAP or the skills in issue. The appellant has had significant experience in the transport industry and has transferable administrative skills and many general skills acquired over the years. In terms of the criteria of s 15 of the Act, the appellant's age is not relevant. 
In my view, this is a situation where all work capacity assessment procedures have been properly followed. From an overall perspective, I consider that the respondent's decision (and that of the Review Officer) is correct. This appeal is hereby dismissed. 

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