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Accident Compensation Cases

Mason v Accident Compensation Corporation (DC, 09/05/03)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
The issue in this appeal arises from the respondent's decision of 26 February 2002 whereby it advised the appellant that she was assessed as having a capacity for work and that her weekly compensation would thereupon cease. 
[2]
The background which is relevant to the issue in this appeal can be stated as follows: 
At the time the respondent made its decision which is the subject of this appeal, the appellant was aged 55 years. 
In 1987 the appellant obtained cover under the 1982 Act for a right wrist injury, subsequently diagnosed as carpal tunnel syndrome. At the time she suffered this injury she was employed as a steward by the RNZAF. 
In 1988 the appellant commenced receiving weekly compensation, she being medically retired from her employment. 
In July 1996 the appellant underwent a carpal tunnel decompression operation and shortly thereafter she underwent a trapeziectomy of her right arm. 
It should also be noted that the appellant lost the three middle fingers of her left hand in a motor mower accident in the 1960's. 
In November 2000 a vocational assessment report identified that the appellant had transferable skills and that she had a capacity to work in sedentary and light work. 
The respondent had also received advice from two occupational medicine specialists namely Dr Sprott and Dr Kenney that the appellant was capable of undertaking a wide range of light tasks but did put certain qualifications on her abilities. 
In November 2001 the respondent instituted the Work Capacity Assessment Procedure and the occupational assessor identified 9 employment options as being suitable for the appellant, included in which were Hostel Supervisor and Car Park Attendant. 
On 19 November 2001 the appellant was medically assessed by Dr David Prestage and Dr Prestage advised that the appellant had a capacity for full-time work in the employment options of Hostel Supervisor and Car Park Attendant. 
The appellant's diagnosis at the time that her medical assessment was carried out was that of a chronic regional pain syndrome of the right arm. 
As a consequence of those two assessments the respondent made a decision on 26 February 2002 that the appellant had a capacity for work and she was advised accordingly. 
It is to be noted that that at the time the assessments were carried out the appellant was employed part-time as a Hostel Supervisor at Sonninghill Hostel, the residential hostel for Hamilton Girls' High School, and had been so for some two years and four months. 
The appellant sought a review of the respondent's decision and a hearing took place on 19 August 2002 at which the appellant gave evidence of the nature of her duties at the Girl's Hostel. 
In a decision dated 2 September 2002 to the Reviewer found that by reason of the physical requirements for Car Park Attendant, he found that the appellant did not have a capacity for work in that employment option but he found that he she did have a capacity for work as a Hostel Supervisor and therefore he confirmed the respondent's decision. 
For the purposes of the appeal to this Court, the appellant obtained leave to introduce a medical report from Dr E W Dryson, Occupational Medicine Specialist. 
[3]
In this appeal the appellant takes no issue with matters of vocational rehabilitation and Miss Taylor has confined her argument to that of her contention that the appellant does not have the physical capability of full-time work as a Hostel Supervisor and that her current employment in that position is part-time and does not cover the whole range of duties which the generic employment option of Hostel Supervisor would encompass. 
[4]
For the respondent's part, counsel has advised that she is not seeking to contend that the Reviewer was wrong to reject the employment option of Car Park Attendant so that the position is that the issue of whether the appellant has a capacity for work stands or falls on whether her assessment as being capable of fulfilling the employment option of Hostel Supervisor can be sustained. 
[5]
It is Miss Taylor's submission on behalf of the appellant that both the occupational assessor and the medical assessor have given too much emphasis to the nature of the appellant's employment at Sonninghill Hostel and have equated the range of her duties there with the range of duties that a Hostel Supervisor would be required to fulfil and have determined that because she does fulfil the duties required of her at her current employment, that necessarily means that she can do so on a full-time basis as a Hostel Supervisor in its generic form. 
[6]
Miss Taylor submitted that the generic employment option of Hostel Supervisor and the nature of the appellant's present part-time employment are quite different and that the range of duties required of a Hostel Supervisor are such that they could not be undertaken by the appellant from a physical prospective. 
[7]
Miss Thompson, counsel for the respondent, submitted that the assessors both had regard to the generic employment option and that the key physical functions required of that option are within the appellant's physical capabilities. 
[8]
At the review hearing the appellant introduced evidence as to the nature of her duties, both from evidence given by herself and from letters from her employer. From that evidence the circumstances of the appellant's employment can be stated as follows: 
The appellant is employed as a Hostel Supervisor at Sonninghill Hostel for students at Hamilton Girls' High School. She has worked there since July 1999. 
She works five days per week and her hours are from 5.00 a.m. to 9.00 a.m. 
She supervises the boarding girls from the time they get up to the time they leave for school. She allocates duties to the girls, supervises the breakfast period and checks the dormitories. 
The appellant's job is as Assistant to the Matron and it is the Matron who carries out the administrative duties, including the clerical work. 
[9]
Evidence has been received from the Hostel Manager who advises that the appellant's hours cannot be extended as there are no duties outside her current hours which she could perform within the terms of her disability. 
[10]
The Job Detail Sheet prepared by the Vocational Assessor described the job title as “Hostel Supervisor — NZSCO 51212”. The key tasks and responsibilities were stated as including: 
“Plans, directs and controls the organisation, administration and operation of the housekeeping department; Maintains standards required by hygiene, safety, security and other relevant regulations; May hire, train and/or direct staff and establishes and maintains standards of staff performance and services to guests; Ensures that equipment and facilities are maintained in good working condition; Purchases or assists in purchasing supplies; Oversees the storage, stock control and use of supplies; Checks housekeeping accounts and takes inventories of bed linen etc; Prepares housekeeping budget; Communicates with other departments as appropriate. ”
[11]
Although the Occupational Assessor has identified the job title as Hostel Supervisor, when one refers to New Zealand Standard Classification of Occupations 1999 (NZSCO) and refers to sub group 51212, that classification is identified as Housekeeper (not private). The narration of tasks for that classification is the narration which the occupational assessor has identified as being associated with Hostel Supervisor. 
[12]
It was the information set out in para 10 above which Dr Prestage had for the purposes of his medical assessment. In that assessment Dr Prestage noted the earlier advice of Dr Kenny, Occupational Medicine Specialist, given in November 1998 — 
“There is no injury related reason why Mrs Mason cannot undertake a wide range of generally lighter tasks, particularly where there is no requirement for possible gripping, carrying or twisting movements of the right hand and forearm. ”
Dr Prestage also noted the advice of Dr T Sprott, Occupational Medicine Specialist, given in July 2001 when he stated: 
“Gillian is fit to undertake work where there is task variety, a limited requirement for undertaking sustained forceful or repetitive tasks using her right upper limb, absence of any significant hand vibration exposure, and preferably where there is emphasis on cognitive tasks and manual based tasks. ”
[13]
Dr Prestage's assessment of the appellant's capabilities in relation to the employment options of Hostel Supervisor was stated as follows: 
“Mrs Mason says that she could not manage further hours in her current job. This may be the case but there is no physical reason why she should not manage a mainly a Supervisory role and it may be that her current specific role is not ideal. She has tried to arrange more hours but this would require her performing duties that she is not suited to. Overall this option should be a suitable one provided the role is predominantly Supervisor and Administrative. ”
[14]
In a subsequent letter to the appellant's advocate of 22 May 2002, Dr Prestage further explained his advice as given above and he stated as follows: 
Hostel Supervisor — it must be kept in mind that I gave an opinion on this option as a generic job description, and not necessarily Mrs Mason's current position. I remain of the view that Mrs Mason can do this job on a full-time basis provided it is mainly supervisory. She could cope with small amounts of intermittent computer work. I stated in my report that this option was suitable provided it was mainly supervisory. This means that if it requires more than mainly supervisory work, then it would not be suitable. I am not able to offer an opinion as to whether this type of job is available for 35 hours per week or more, but if it were I believe Mrs Mason would be able to manage. It seems clear that her current job does not offer 35 hours per week without the requirement for repetitive tasks. However this does not mean that other Hostel Supervisor positions would not be suitable. ”
[15]
The Occupational Assessor also clarified her advice on how she selected the job option of Hostel Supervisor as being suitable for the appellant. She stated that she selected NZSCO code 51212 because it predominantly involved planning, organising and supervisory functions. She then went on to state as follows: 
“Gillian's current role involves her in some limited and brief manual activities (putting out breakfast cutlery and food), which she said she is able to manage. However, the key functions of her job are associated with; maintaining security, verifying whereabouts and checking on student needs, keeping roles and administration data up to date and accurate, providing support, managing the time and routines of the mornings activities and so on. In my opinion these activities are essentially supervisory and based around the life and needs of students. I did not get any impression from Gillian that she acts as a cleaner, building maintenance worker, domestic aid or other practically oriented role at the hostel. ”
[16]
Following the respondent's decision, the appellant sought the opinion of Dr E W Dryson, Occupational Medicine Specialist and for the purposes of his report he examined the appellant. After noting her history and identifying her current symptoms Dr Dryson gave as his opinion of her fitness for work as follows: 
“Clearly Gillian can manage her current 20-21 hours per week as a Hostel Supervisor. This is because there is very little hands on activity. Clearly if Gillian was able to obtain 40 hours per week in this type of work she would be able to manage. 
To be realistic however her work is not typical of a hostel supervisor and the more administrative, office type duties, and other hands on duties are not a requirement for her, since there are other people to do that. 
In terms of a work rehabilitation assessment reference should be made to the job details sheet for Hostel Supervisor. This does not indicate any repetitive movements or heavy lifting, pulling or carrying. It does however indicate the use of hand tools if cooking, cleaning or using the computer. Clearly if Gillian was required to do cooking, cleaning or computer use she would not be able to do the job at 35 hours or more per week. ”
Decision 
[17]
From the evidence that has been presented I am satisfied that the nature of the duties and the type of employment which the appellant is currently undertaking does not come within the framework of a Hostel Supervisor as that employment option must be considered in its generic form. The appellant's role is wholly supervisory and all other duties which might otherwise fall to her are not so required of her because of her physical disabilities. 
[18]
There is no evidence to suggest that the role which the appellant does in fact carry out is one which is a recognised employment option and would be available for full-time work. Therefore I find that the appellant's present role cannot be extrapolated out to be found to be a position for which she has a capacity for work within the meaning ascribed to that phrase in the Act. 
[19]
The employment option identified as Hostel Supervisor or House Keeper (not private) does seem to be supervisory in many of its duties but I am not satisfied that this employment option is any different from the employment option which the matron of the Sonninghill Hostel carries out and which it is recognised as beyond the capabilities of this appellant. The description clearly includes a myriad of administrative tasks and seems to have a significant clerical input, including computer use, and the description of “function and activity” given by the occupational assessor included the requirement of using hand tools if cooking, cleaning etc, may use computer. 
[20]
Dr Prestage to some extent and Dr Dryson to a greater extent have identified the clerical and non-supervisory activities as not being suitable for the appellant. It is to be remembered that the appellant has very limited use of her left hand because of the loss of her fingers and it is the right arm which is the one which is the problem and the covered injury. 
[21]
I interpret Dr Prestage as saying that the type of role which the appellant is currently carrying out, being mainly supervisory, is one which she could perform on a full-time basis and that the employment option of Hostel Supervisor is suitable provided the role is one which is similar to that which she currently carries out. 
[22]
As I have found, the generic employment option of Hostel Supervisor is much more than the range of duties which the appellant currently undertakes and I am satisfied on the evidence of Dr Dryson that the appellant is not capable of undertaking the full range of duties that the position of Hostel Supervisor would require. 
[23]
I find that the opinion of Dr Dryson must be given weight, he is an experienced Occupational Medicine Specialist and has given evidence to this Court on countless occasions, both orally and in writing and I have always found him to be wholly objective in his advice, just as an expert witness should be. 
[24]
When I add the opinion of Dr Dryson to my own findings in relation to the job description and comparing it with the appellant's current role, I find that the Court cannot be satisfied that it has been established that the appellant does have a capacity for work as a Hostel Supervisor and I do so find. 
[25]
The consequence of this finding is that the respondent's decision determining that the appellant has a capacity for work is quashed and the appellant is entitled to a reinstatement of her weekly compensation as from the date it was terminated. 
[26]
The appellant is also entitled to costs which I fix at $1,200.00 together with the costs of Dr Dryson's report. 

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