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Accident Compensation Cases

Heppleston v Accident Compensation Corporation (DC, 13/03/02)

Judgment Text

Judge M J Beattie
The issue in this appeal is whether the respondent's decision of 14 April 2000, determining that the appellant had a capacity for work, was invalid. This appeal turns on the question of whether or not the medical assessor ought to have taken account of non-accident-related medical problems in assessing whether the appellant had the capacity to undertake any of the types of employment that had been identified by the occupational assessor. 
The facts which are relevant to the determination of this issue are within a short compass and may be stated as follows: 
The appellant obtained cover for a work related neck strain that occurred in October 1986. The appellant began receiving weekly compensation in respect of this injury in December 1986. At that time the appellant was 42 years of age. 
The appellant's employment was that of a data entry operator at the time her injury forced her to give up work. 
Although the appellant had been provided with some vocational assistance she had not obtained any employment up to the time in 1999 when the respondent determined to refer her to the Work Capacity Assessment Procedure. 
In an Assessment dated 5 April 1999 an Occupational Assessor identified a total of ten suitable job options based on the appellant's education, training, experience and transferable skills. 
On 7 May 1999 the appellant underwent a medical assessment from a Dr Karsas and he determined that the appellant was physically capable of carrying out 30 or more hours per week in six of those job options that had been identified. 
On the basis of those assessments the respondent made a determination in May 1999 that the appellant did have a capacity for work. 
In early 2000 the respondent revoked that decision on the basis that 
Dr Karsas appeared not to have the relevant qualifications for a medical assessor under the Act. The appellant was thereupon referred to Dr John Kerr, who is appropriately qualified and who is an Occupational Medicine Specialist, for a medical assessment. 
Dr Kerr carried out his assessment on 23 March 2000 and determined that the appellant was physically capable of working 30 or more hours per week in seven of the job options previously identified. 
On the basis of Dr Kerr's assessment the respondent issued a further decision on 14 April 2000 determining that the appellant had a capacity for work. 
In his assessment report Dr Kerr noted that the appellant suffered from diabetes and was on dietary control. He also noted that she suffered from irritable bowel syndrome. He further noted that the appellant's husband had died approximately one month before the date of his assessment, after an illness where she had been required to nurse him. 
Although it was not referred to in Dr Kerr's report, it was established from a subsequent independence allowance assessment carried out by Dr John Sprunt in October 2000 that the appellant suffered from osteoarthritis in her hands. Dr Sprunt also alluded to the fact that the care for the appellant's husband had affected her and it was uncertain as to how much her waking at nights was a result of this. 
In his report Dr Kerr advises of the findings of his examination of the appellant and of the normal range of movement which she had in her cervical spine, shoulders, elbows, wrists and hands. It was on the basis of his physical examination of her that he found that she was capable of working 30 or more hours per week in the seven job options he advised. At no stage in his advice did he indicate that any non-accident injury or condition would be a factor in the appellant's ability to carry out the work tasks of the identified job options. 
Mr Miller, Counsel for the Appellant, submitted that the fact of the assessment not taking account of the appellant's non-accident related medical problems when determining whether she had the physical ability to carry out the various job options meant that the medical assessment was invalid as those non-accident-related problems ought to have been taken into account in the overall assessment of the appellant's capacity. 
Counsel referred to the High Court decision in Kenyon v ACC (Wellington HC AP258/00). 
Mr Miller further submitted that both the 1992 Act and the 1998 Act were concerned with determining the consequences of the personal injury as it affected a person's capacity for work and those consequences must include a consideration of the impact that that injury has on other non-accident-related medical conditions. In that regard Mr Miller gave the example of a person who lost the sight of his only good eye in an accident and he posed the question of whether that person must be looked at as being a person who was totally blind or only half blind, that is, the blindness in his other eye being disregarded. Counsel married that submission up with the observation made by Justice Fisher in the Kenyon decision where he opined that “to ignore the pre-existing disability is to part company with the real world.” 
Mr Richards, Counsel for the Respondent, made several submissions in reply, some of which I will be referring to in my decision. He submitted that if Mr Miller's submissions were to be accepted it would mean that the weekly compensation regime for incapacity would be extended to a de facto invalid's benefit if non-accident-related injuries were to be the difference between capacity for work or not. 
As a preliminary point I accept the submission of Counsel for the Respondent that the legal issues arising in this appeal should be considered by having regard to the provisions of the Accident Rehabilitation and Compensation Insurance Act 1992 and the Gazetted Procedure prescribed thereunder as the procedure for assessing this appellant was commenced during the currency of that Act, even though the decision, which is now the subject of this appeal, was made after the commencement of the Accident Insurance Act 1998. 
I accept that the provisions of s 18 of the Interpretation Act 1999 would have the effect of having the 1992 Act continue for the purposes of the completion of the Work Capacity Assessment Procedure as it pertained to this appellant. Section 18 of the Interpretation Act 1999 states as follows: 
18 Effect of repeal on enforcement of existing rights — 
The repeal of an enactment does not affect the completion of a matter or thing or the bringing or completion of proceedings that relate to an existing right, interest, title, immunity, or duty. 
A repealed enactment continues to have effect as if it had not been repealed for the purpose of completing the matter or thing or bringing or completing the proceedings that relate to the existing right, interest, title, immunity, or duty. 
The relevant provisions of the 1992 Act are as follows: 
Section 50(6) states — 
The procedure shall not be invalid merely because the procedure disregards — 
Any inability to do anything that does not result from — 
Personal injury covered by this Act; or 
Personal injury by accident in respect of which a claim has been accepted under the Accident Compensation Act 1972 or the Accident Compensation Act 1982; or 
Whether or not there are any employment opportunities existing in any employment for which the person is then suited. 
The statutory definition of capacity for work as contained in s 51(2) of the 1992 Act means — 
“The person's capacity to engage in work for which the person is suited by reason of experience, education, or training, or any combination of those things and that capacity shall be determined having regard to the consequences of the person's personal injury. ”
Finally it should be noted that in the Gazetted Procedure it is stated as follows: 
“Non-injury related factors 
The medical assessor is required to determine any non-injury related factors, such as illness, preventing a claimant from returning to work. If it can be shown that an illness, unrelated to injury, prevents a claimant from working in an identified job, section 50(6) of the ARCI Act allows ACC to determine capacity for work. This means that weekly compensation can end, if a claimant cannot work because of a non-injury-related factor. These factors include: 
illness existing before the injury; 
non-injury-related illness developed after the injury; and 
psychological conditions present before the injury. ”
The appellant contends that the medical assessment was invalid in that it did not consider any non-injury related factors which may have impinged upon the appellant's capacity for work. As I understand Mr Miller's submissions, it is that unless these non-accident-related medical problems are taken into account and considered in relation to the assessment of whether the appellant has a physical ability to carry out the identified job options then that assessment is not having regard to the consequences of the personal injury which the appellant has suffered. 
Mr Miller than went on to give the analogy of the person already blind in one eye and who loses the sight of the other eye by accident. It is his contention that if the respondent's submission is to be accepted, the assessment for capacity for work would have to disregard the blindness in the eye that had not been caused by accident. 
I find that this particular analogy is misleading as it tends to suggest that the emphasis is transferred from the injury by accident to the non-accident-related condition. Using Mr Miller's analogy the consequences of the accident injury is that the person is totally blind. It is from that perspective that his/her capacity for work must be considered. To do otherwise would, as Justice Fisher suggested, be departing from the real world and I find that it is only if Mr Miller's submission is accepted is there a departure from the real world. 
In other words, I say that if the accident related injury is something that tips the balance, when taken together with a person's pre-existing condition, then it must be that the consequences of that personal injury are such that it renders that person not to have an ability to carry out the particular assessed job options for the requisite minimum period. 
That I find is a different situation from that where the medical assessor examines the claimant and assesses his/her physical capability having regard to the accident injury, which is the focus of the assessment, and determines that there is nothing from it which would prevent the person from undertaking the particular job options identified. If that injury does not impinge on and have consequences on a person's ability to carry out certain job options then the non-accident-related conditions must be disregarded. If it is only the non-accident-related conditions which are preventing the person from being able to carry out the tasks, then those circumstances must be disregarded as to do otherwise would simply be providing a sickness/unemployment type of benefit in the guise of a weekly compensation entitlement. 
I do accept that the line is quite fine but nevertheless the 1992 Act, and specifically Section 50(6), made it quite clear that the Procedure of determining a capacity for work is not to be invalid because of any inability to do anything which has not been caused by the personal injury covered under the Act. That same concept is reinforced in the Gazetted Procedure at page 17, which I have referred to earlier, and is in effect explanatory of the meaning of Section 50(6). 
In summary then, I find that on the facts of this case there is no evidence that the non-injury-related medical problems were in any way inhibitive of this appellant's ability to perform the tasks required in the job options which the medical assessor determined she was capable of doing having regard for her accident injury. The assessment cannot be said to be invalid simply because those conditions were not factored into the assessment when there is no evidence that they were required to be so factored into the assessment. The accident related injury must stand or fall on its own as to its consequences on a claimant's ability to fulfil any job options identified. If it is assessed that there is nothing preventive about the accident injury then the Act and Procedure stipulates that any non-injury-related factors are to be disregarded. 
Using the analogy of the half blind claimant, the accident causing blindness to his one good eye would thereby create the state of total blindness and therefore his capacity for work would likely be considered non-existent. Certainly, he would not thereby be regarded as having some notional sighted eye. That is a nonsense and so is the nonsense of the “legless tap dancer” which had been used as an analogy in the submissions which were made to Justice Fisher in the Kenyon decision and which seems to have had as its genesis a submission by illustration in the decision of Alsig (54/01). 
I adopt the view of His Honour Judge Barber as expressed by him in Alsig where he stated as follows: 
“I take the view that the application of the WCAP is always subject to an overall judgement based on reality or common sense. After all, the issue is whether the appellant ‘is suited by reason of experience, education, or training, or any combination of those things’ for the suggested employment for 30 hours or more a week. Even though any condition not related to the personal injury, or availability of work, is not to be taken into account, s 15 does not give the respondent a licence to ignore reality. In this case the appellant is not ‘suited’ to the suggested occupations, except, maybe, that of picture framer, and seems to have had insufficient experience, or education, or training for them. 
I agree with the examples of Mr Miller that no matter what the assessment procedure may conclude, one would not assess a one legged person, or a person with two false legs, as suitable for the occupation of a (tap) dancer; nor would one certify any one of us with no particular aptitude for drama as fit for the occupation of a film actor of the Hollywood type. So too, in this case, the work capacity assessments are devoid of reality, in my view. ”
Mr Richards, after referring to the legless tap dancer example, submitted that in the present case there was no outrage to common sense in the respondent's decision, there is merely the assumption that the appellant's non-covered conditions are to be excluded when it comes to assessing her capacity for work for the purposes of continued entitlement to weekly compensation. 
I agree with his observation when he submitted that the intention of weekly compensation is to compensate a person incapacitated on account of the affects of his/her personal injury and not his/her other health problems or other personal circumstances. 
The Act has specifically made provision for a person to have her weekly compensation entitlement removed even though they are in law still incapacitated, that is unable by reason of their injury to resume their pre-accident employment, but nevertheless after a due process of assessment are shown to have a capacity for some other work for which their education, training, experience and physical capabilities makes them suited. 
It is if that state is assessed as being the case for a particular claimant then he/she is then placed on the same footing as any other member of the workforce or the aspiring workforce and is considered capable of working. On such footing the weekly compensation entitlement is lost. Were it to be otherwise and as Mr Miller would suggest, then I find that the purpose of the Act to provide compensation for injury would be thwarted and instead compensation would be provided for reasons other than for personal injury by accident for which cover had been granted. In those circumstances it would amount to a de facto sickness/invalids/unemployment benefit. 
For the foregoing reasons therefore I find that the fact that the medical assessor did not take account of the appellant's non-accident conditions cannot in the circumstances of this case render his assessment invalid as there is no evidence that the personal injury by accident impinged upon those factors and which combined rendered the appellant physically incapable of carrying out the assessed job options. 
This appeal is therefore dismissed. 

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