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Accident Compensation Cases

Olsen v Accident Compensation Corporation (DC, 17/09/03)

Judgment Text

RESERVED JUDGMENT OF JUDGE J. CADENHEAD 
Judge J. Cadenhead
The issue 
[1]
The issue in this case is whether the respondent was correct in suspending the appellant's weekly compensation on the basis that he had been to found to have a capacity to work. In particular the issues that are central to the appeal are: 
1.
Whether rehabilitation had been completed in accordance with the rehabilitation plan's objectives? 
2.
As the last medical assessment forms the basis of the fresh primary decision, should there have been further rehabilitation and vocational assessments in view of the ensuing time gap and the critical importance of the statutory procedure for determining capacity to work? 
[2]
This appeal is not concerned with the issue of whether the original injury had been spent, although there would have been no reason why a primary decision could not have been made in that respect and concurrently dealt with along with the present issues. 
[3]
I record I have read the further submissions of both parties, but at the end of the day the submission of the respondent does not impact upon my final conclusion. 
Narrative of facts 
[4]
The appellant has cover for multiple injuries, including a laceration and broken bones in the left hand, which occurred on 2 February 1991, a neck injury on 27 June 1993, and injuries to both knees sustained on 4 April 1998. 
[5]
The appellant's left wrist was fused, initially with the use of plates and screws on 10 February 1993. X-rays taken of the appellant's knees over time indicate that they are normal, however he continues to suffer pain, weakness and instability in the left knee. The appellant's cervical spine has deteriorated. On 29 October 2001 the appellant had an anterior cervical decompression and fusion of C6/7 and C5/6 of the cervical spine. This operation was carried out by Mr Furneaux, neuro spinal surgeon. 
[6]
There have been various individual rehabilitation plans developed over the period of his injuries. The most recent updated plan was signed by the appellant and his case manager on 22 November 2000. This plan was an update from his previous individual rehabilitation plan. The various objectives set out in this plan included: 
1.
A referral to career services for a vocational assessment and curriculum vitae. 
2.
Agreement on the part of the appellant to attend the appointment with the understanding that a failure to do so might result in suspension of weekly compensation. 
3.
A discussion of the report to establish the strategies required for the appellant to achieve his goal of full-time employment. 
4.
A referral for a vocational assessment, curriculum vitae, and employment and preparations seminar with a possible work trial to assist in identifying employment skills and suitable alternative employment. 
5.
A referral to Colleen Hyde for a pain management program. 
[7]
The appellant undertook a pain management program with Colleen Hyde and a report was forwarded to the respondent on 11 November 2000. The appellant undertook a functional capacity evaluation on 20 January 2001, with the overall comment that he was fit for medium to light sedentary work. This evaluation took account of all the appellant's injuries including the back injury. The appellant attended a preparation for an employment seminar in January 2001. Later in March the appellant was referred for a work trial at Kingfisher Lodge as a groundsman. This trial commenced on 27 March 2001. The appellant finished the work trial on 11 April 2001 and there had been some increase in pain to his back injury. Also, in March 2001 the appellant was referred for vocational assessment, pre-employment preparation and preparation of a curriculum vitae. At this point in time the appellant's individual rehabilitation plan was complete and he was referred for a work assessment. 
[8]
The occupational assessment was carried out on 18 July 2001 by Marea Brown and she identified nine suitable job options based on the appellant's transferable skills. The appellant was then referred to Dr Gollop, occupational specialist, for a medical assessment. Dr Gollop identified five positions, which the appellant would be able to carry out after he had scheduled neck surgery. 
[9]
The respondent suspended the appellant's weekly compensation on 4 September 2001 on the basis that he had been found to have a capacity for work. This decision was later revoked on 15 March 2002 pending the outcome of the neck surgery. 
[10]
The operation was carried out in late 2001. Dr Gollop saw the appellant again on 24 June 2002, some eight months following the operation. He carried out another full assessment. Dr Gollop was in receipt of all the relevant reports regarding surgery performed by Mr Furneaux. Dr Gollop was of the opinion that the appellant was fit for five of the job options. He also noted in his report that the appellant was to see his general practitioner and have a further x-ray of his spine to check that the grafted bone and subsequent callus formation was stable. 
[11]
A further report was forwarded by Dr Gollop on 18 August 2002 enclosing an up-to-date x-ray. Dr Gollop confirmed that the C6/7 level fusion was stable and well united. He therefore confirmed his recommendations and his report of 24 June 2002. The medical assessments confirmed, following surgery, that the appellant was able to undertake various job options for 35 hours or more per week. A decision letter was issued to the appellant on 1 August 2002 suspending his weekly compensation. The appellant sought to review this decision on 3 September 2002 
The rehabilitation plan 
[12]
The most recent updated plan was dated 22 November 2000. I have referred to the objectives of that plan in the narrative of facts. The objectives of this plan were complete around March 2001 and the appellant was referred for a work assessment. 
[13]
However the individual rehabilitation plan dated 12 March 2001 shows that as at 8 March 2001, a referral had been sent to Saute Holdings to implement a six-week gradual return to work trial. It was recorded that the appellant understood that at the completion of the work trial, the file would be referred for work rehabilitation assessment. The work rehabilitation assessment procedure had been explained and the appellant had received a work capacity assessment fact sheet. 
[14]
Saute Holdings Ltd reported to the respondent on 23 April 2001. The effect of that report was that work duties were attempted by the appellant and that he successfully worked the first four weeks of the trial. He showed himself to be a reliable and well liked employee. In weeks one and two the appellant commented that although he was feeling some discomfort in his back, which at times he stated was quite severe, nevertheless he was prepared to continue and work the proposed hours. The appellant was not available for immediate comment concerning week three and did not return calls, but he commented retrospectively that he had managed to work despite back discomfort. The staff at Kingfisher Lodge reported that the end of week three the appellant was looking pale and did not seem so well, although he managed all the work expected of him and still seemed to be enjoying it. 
[15]
In week four the appellant stated he was unable or unprepared to continue the work trial and he listed a number of reasons (relating to general illness, including shortness of breath, low blood pressure, cramps, and feeling unwell). He subsequently spent one night in hospital. It appeared that he had recently undergone a change in medication. He also reported that x-rays revealed that he had fluid on the lungs. Further, the appellant reported his injury sites had been sore and that his general practitioner had suggested that he would have to have his vertebrae fused. 
[16]
In the light of the emergence of the stated medical problems and the possibility of ongoing investigations and further surgery, the appellant decided that he was unable to complete the work trial. In light of these factors it was felt rehabilitation was unable to progress further. Kingfisher Lodge closes over the winter and the closure coincided with the end of the work trial as stipulated in the original signed contract. There might have been a possibility of part-time employment in the new season. 
The vocational assessment 
[17]
The occupational assessment was carried out by Marea Brown, an approved assessor pursuant to section 89(3) of the 1998 Act. Ms Brown noted the appellant's transferable skills, as a result of his employment and life experience with boats and sailing vessels. She said that the appellant had a Coastguard Boat Masters Certificate, and a Coastguard Skippers Certificate, a Navigator's Certificate, and had also had completed a course in first aid and an occupational health and safety course. It was noted that he had adequate levels of numeracy and literacy. 
[18]
The appellant contended at the appeal that he did not have the qualifications of a commercial boat/master launch operator. The appellant gave evidence in front of me and said that he did not have a launch master's certificate. Because of his physical condition he said that he did not have or could not get a driver's licence. He further said that he did not have any sales experience or knowledge that would qualify him as a safety inspector. He did not have a navigator's certificate, nor had he attended a first aid course, and nor had he attended a course in occupational safety. 
[19]
Ms Brown identified nine job options as suitable: 
1.
Commercial boatmaster/launch operator; 
2.
Fishing skipper; 
3.
Fisheries inspector/officer; 
4.
Caretaker/property maintenance; 
5.
Store person/store clerk; 
6.
Customer service/sales boats and chandlery; 
7.
Meter reader/ rural outer islands; 
8.
Orchard hand; and 
9.
Safety inspector — marine surveyors assistant. 
Medical assessment 
[20]
The first medical assessment was carried out by Dr Gollop on 21 August 2001. This assessment noted that the appellant was about to have a cervical spine fusion and would not be able to carry out the identified job options until three months following the operation. The job options identified were: 
1.
Commercial boatmaster/launch operator; 
2.
Fisheries inspector/officer; 
3.
Customer service/sales boats and chandlery; 
4.
Meter reader — rural outer islands; and 
5.
Safety inspector —marine surveyor's assistant. 
[21]
These job options were reviewed with the appellant and consideration was given to the effect that the injuries to his left wrist and lower cervical spine would have on them. Dr Gollop gave detailed reasons in respect to each of the occupations, which included the appellant's comments. Dr Gollop thought that the appellant would be permanently unfit for moderate or heavy manual work and would be fit for light work and supervisory type of work only. It was anticipated that the appellant would be having a fusion of the lower cervical spine, which would be carried out in the next week. 
[22]
The next medical report of Dr Gollop is dated 24 June 2002. He noted that the surgery had been carried out on 29 October 2001 by Mr Furneaux. It was now close to eight months after the operation. The appellant felt that there had been no improvement to his overall condition, in that he continued to have activity related pain in his cervical spine and that there was swelling over the operation site related to heavy lifting. Dr Gollop thought that his overall condition was the same as last August 2001. He recommended that the appellant attend his general practitioner next week and have a check x-ray on his cervical spine. He thought, clinically the appellant was now in a stable condition and that following a check x-ray he was fit for light work of a supervisory nature. Reviewing the previous occupations, Dr Gollop's recommendations were the same as before. Unlike the previous time, detailed comments were not made in respect to each occupation. The appellant was noted as saying that he did not have adequate skill and experience for the jobs, and that to be a commercial boatmaster/launch operator required at least fifteen years to build up that type of skill. 
[23]
On 18 August 2001, there was a further medical report from Dr Gollop detailing the x-ray results that showed that the cervical spine fusion was stable. Dr Gollop reaffirmed his recommendations as to suitable occupations. 
[24]
I do not intend to comment on any of the other medical reports submitted in view of my conclusions. To comment on the medical aspects of the case and the vocational assessments, which were heavily challenged, might embarrass any other review hearing that might arise. 
The revocation of the earlier decision as to capacity to work 
[25]
On 15 March 2002 the solicitors of the respondent, after reading the file, recommended: 
1.
The decision letter of 4 September 2001 be revoked; 
2.
An occupational and medical assessment be arranged for Mr Olsen; and 
3.
A fresh decision regarding Mr Olsen's capacity for work be issued on the basis of the assessment. 
[26]
The letter then refers to the acceptance of cover in 1993 and the operation in October 2001. It was necessary to take this neck injury into account in a work capacity assessment. While Dr Gollop had identified positions that the appellant had a capacity to work, his opinion was qualified that the appellant would not be expected to be fit for employment for a further three months whilst he recovers from his cervical spine operation. Dr Gollop went onto note that the appellant would be fit for the positions identified, three months after his operation. 
[27]
It was not thought, pursuant to section 89 of the Act, that a new individual rehabilitation plan was required to be agreed to commence the statutory process again, as the neck injury had occurred in 1993 and the disabilities of that injury had been taken into account in the development of the existing plan. 
[28]
The decision letter of 4 September 2001 was revoked on the basis of this letter of 15 March 2002. 
The legislation 
[29]
I set out in full, the statutory provisions concerning the procedure provided by the statute, for assessing work capacity: 
“89
Insurer to determine capacity for work 
(1)
The insurer may determine the capacity for work of— 
(a)
An insured who is receiving weekly compensation: 
(b)
An insured who may have an entitlement to weekly compensation: 
(c)
An insured who is receiving, or may have an entitlement to receive, weekly compensation under clause 71 of Schedule 1. 
(2)
The insurer determines an insured's capacity for work by requiring the insured to participate in an assessment carried out— 
(a)
In accordance with sections 93 to 100; and 
(b)
At the insurer's expense. 
(3)
The insurer may require the insured to participate in such an assessment at any time that the insurer considers appropriate after the insured has completed any vocational rehabilitation that the insurer was liable to provide under his or her individual rehabilitation plan. 
(4)
The insurer may determine the insured's capacity for work at such reasonable intervals as the insurer considers appropriate. 
(5)
However, the insurer must determine the insured's capacity for work again if— 
(a)
The insurer has previously determined that the insured had a capacity for work, either under— 
(i)
This section; or 
(ii)
Section 51 of the Accident Rehabilitation and Compensation and Insurance Act 1992; and 
(b)
The insurer believes, or should reasonably believe, that the insured's capacity for work may have deteriorated since the previous determination. 
(6)
The insured may give the insurer information to assist the insurer to reach a belief under subsection (5)(b). 
 
93
Notice to insured in relation to assessment of capacity for work 
(1)
The insurer must give written notice to an insured required by the insurer to participate in an assessment of his or her capacity for work. 
(2)
The notice must— 
(a)
State the purpose, nature, and effect of the assessment; and 
(b)
State that the insured is required to participate in the assessment; and 
(c)
State the consequences of not doing so; and 
(d)
State the insured's right to be accompanied by another person during the assessment. 
94
Conduct of assessment of capacity for work 
(1)
An assessment of an insured's capacity for work must consist of— 
(a)
An occupational assessment; and 
(b)
A medical assessment. 
(2)
The purpose of an occupational assessment is to identify types of employment that are suitable for the insured because they match the skills that the insured has gained through education, training, or experience. 
(3)
The purpose of a medical assessment is to provide an opinion for the insurer as to whether, having regard to the insured's personal injury, the insured has the capacity to undertake any type of employment identified in the occupational assessment. 
95
Occupational assessor 
An occupational assessment must be undertaken by an assessor who has the appropriate qualifications and experience to do the assessment required in the particular case. 
96
Conduct of occupational assessment 
An occupational assessor undertaking an occupational assessment must— 
(a)
Take into account any information provided by the insurer and the insured; and 
(b)
Discuss with the insured all the types of employment that the assessor identifies as suitable for the insured; and 
(c)
Consider any comments the insured makes to the assessor about those types of employment. 
97
Report on occupational assessment 
(1)
The occupational assessor must prepare a report on the occupational assessment specifying— 
(a)
The insured's work experience; and 
(b)
The insured's education, including any incomplete formal qualifications; and 
(c)
Any work-related training in which the insured has participated; and 
(d)
All skills that the assessor has identified the insured as having; and 
(e)
All types of employment identified as suitable for the insured; and 
(f)
In relation to each type of employment, the requirements of that type of employment. 
(2)
The occupational assessor must give a copy of the report to the insurer, the insured, and the medical assessor. 
98
Medical assessor 
(1)
A medical assessment must be undertaken by a registered medical practitioner who— 
(a)
Holds vocational registration under the Medical Practitioners Act 1995; and 
(b)
Is described in subsection (2) or subsection (3). 
(2)
A person who holds vocational registration in general practice must also— 
(a)
Have an interest, and proven work experience, in disability management in the workplace or in occupational rehabilitation; and 
(b)
Have at least 5 years experience in general practice; and 
(c)
Meet at least 1 of the following criteria: 
(i)
Be a fellow of the Royal New Zealand College of General Practitioners or hold an equivalent qualification: 
(ii)
Be undertaking training towards attaining fellowship of the Royal New Zealand College of General Practitioners or an equivalent qualification: 
(iii)
Have undertaken relevant advanced training. 
(3)
A person who holds vocational registration in another branch or sub-branch of medicine must also— 
(a)
Have an interest, and proven work experience, in disability management in the workplace or in occupational rehabilitation; and 
(b)
Be a member of a recognised college. 
99
Conduct of medical assessment 
A medical assessor undertaking a medical assessment must take into account— 
(a)
Any information provided to the assessor by the insurer; and 
(b)
Any individual rehabilitation plan prepared for the insured; and 
(c)
Any of the following medical reports provided to the assessor: 
(i)
Medical reports requested by an insurer before the individual rehabilitation plan was prepared: 
(ii)
Medical reports received during the insured's rehabilitation; and 
(d)
The report of the occupational assessor; and 
(e)
The medical assessor's clinical examination of the insured; and 
(f)
Any other information or comments that the insured requests the medical assessor to take into account and that the medical assessor decides are relevant. 
100
Report on medical assessment 
(1)
The medical assessor must prepare a report on the medical assessment specifying— 
(a)
Relevant details about the insured, including details of the insured's injury; and 
(b)
Relevant details about the clinical examination of the insured undertaken by the assessor, including the methods used and the assessor's findings from the examination; and 
(c)
The results of any additional assessments of the insured's condition; and 
(d)
The assessor's opinion of the insured's capacity for work for each of the types of employment identified in the occupational assessor's report; and 
(e)
Any comments made by the insured to the assessor relating to the insured's injury and capacity for work in the types of employment identified in the occupational assessor's report. 
(2)
The report must also identify any conditions that— 
(a)
Prevent the insured from having a capacity for work; and 
(b)
Are not related to the insured's injury. 
(3)
The medical assessor must give a copy of the report to the insurer and the insured. ”
Legal principles 
[30]
The provisions of s 89(3) of the 1998 Act are quite clear. The insurer's right to require an insured to participate in a work assessment arises only after the insured has completed any vocational rehabilitation that the insurer was liable to provide under his or her individual rehabilitation plan. The issue of whether vocational rehabilitation has been completed is a matter of fact and is arrived at after taking all the relevant facts into consideration. The assessment procedure can be undertaken even if rehabilitation has been wholly unsuccessful. It is the completion of the vocational rehabilitation that the insurer was liable to provide that is important. (Grimstone (246/99, Beattie DCJ). 
[31]
The capacity to work procedure is a discrete process that is governed by the above statutory provisions. The position of a medical assessor is of importance in this statutory framework and he is required to consider all the essential prerequisites prescribed by the above sections. In Ramsay v Accident Insurance Corporation (High Court, Dunedin; AP 412/14/02; 12 December 2002; John Hansen J) after considering that legislation, Hansen J (at paragraphs 50-52) thought that the principles to be extracted from this legislation are: 
“(i)
Section 89 allows the respondent, at its discretion, to have an insured assessed to determine the capacity to work. 
(ii)
Once the respondent determines to exercise that right, then the assessment must be carried out in accordance with the provisions of s 93 to s 100. 
(iii)
Section 98 states that a medical assessment can only be undertaken by a registered medical practitioner who holds vocational registration under the Medical Practitioner's Act 1995, and is described in ss (2) and ss (3) of that section. 
(iv)
Another medical opinion can be placed before the medical assessor and considered in terms of s 99. Indeed, the medical assessor is required to take that opinion into account. 
(v)
Once the respondent determines to require an insured to undergo the process determining capacity to work then from a clear wording of the provision both parties are bound by that process. The scheme of the Act does not envisage a process where the respondent gathers in evidence and reaches a decision by balancing that evidence: that role is given by the legislation to the medical assessor. Parliament has determined the proper way for such persons to consider all relevant matters is in terms of s 99. Parliament has provided for no other method of assessment, and it is certainly not open on the statutory provisions for the work capacity assessment to be disregarded, because the Court, or the respondent, preferred a contrary view of another medical opinion. 
(vi)
There may be situations where the respondent and the Court can go behind the assessment, but they will be quite limited. These cases may occur where the medical assessor was not properly qualified under s 98; had failed to take into account matters that he must take into account under that section; or where the report failed to contain some of the information required to contain under s 100 of the Act. 
(vii)
At the end of the day what is required is evidence on which the Court, or the respondent, could say the opinion reached was wrong, and consequently the insurer's decision was wrong. 
(viii)
Once the initial onus of establishing the requirements of work capacity procedure has been discharged, it is for the appellant to show that the respondent's decision that she had capacity for work was wrong. ”
[32]
In addition there is nothing in s 99 of the Act that requires the medical assessor to consider any information, whether medical or not, provided after the medical subsection has been completed. Section 99 provides for the information to be taken into account when completing the assessment. Once the assessment is completed the statutory obligation upon the medical assessor is at an end. If it were otherwise, then it could never be said that the medical assessment was at an end. 
[33]
A medical assessor is required to take into account the information stipulated in section 99(a) to (f), when undertaking the medical assessment. However, it is always open for the claimant to produce further medical evidence to the respondent or the Court and to submit that in the light of the fresh medical opinion that the medical assessment was wrong in substance. It may be prudent for the respondent to refer the fresh material back for further comment, but there is no requirement. Section 99 specifically predicates: 
“A medical assessor undertaking a medical assessment must take into account. ”
[34]
The relevant time is the time of the undertaking of the assessment. Sections 99 and 100 are complementary. After the medical assessment is done a copy of the report must be given to the insured. The medical assessment must identify any comments made by the insured. Clearly, the time for comment is before the assessment is made, not after it. 
[35]
If there is evidence that the claimant's capacity for work has deteriorated then the respondent is required to again make a capacity for work assessment in the light of the claimant's current capacity. The wording of the Act is that the respondent “must determine the insured's capacity for work again”. This would be in the nature of a fresh decision in respect to different periods of time. 
[36]
I cite these principles to show the importance of the integrity of the statutory process in determining a work capacity assessment. There is at least an evidential onus upon the respondent to show that the various prescribed statutory steps have been complied with before being entitled to the benefit of the medical assessment provided by the medical assessor. Once the assessment has been made, the medical assessor is virtually functus officio
Conclusion 
[37]
The capacity for work procedure got off to a bad start in this case. It is clear that initially the medical rehabilitation of the appellant had not been concluded before the first medical assessment. An assessment was made, including the obtaining of a vocational assessment and then a primary decision was made. Responsibly, after reviewing the file, the respondent revoked its initial decision that the appellant had a capacity to work. Additionally, I am of the view that the objectives of the individual rehabilitation plan had not been completed. The appellant had endeavoured to co-operate in completing the work trial, which through no fault of his own had to be prematurely abandoned. Significantly, part of the reason that the appellant was not able to complete this work trial was discomfort caused because of his physical injury. 
[38]
Once the initial primary decision had been revoked, it was necessary for the respondent to once again go through the procedures required by the legislation, to ascertain a capacity for work. In some cases, where there has been no obvious change to the medical condition of a claimant, it may be possible to utilise some of the materials previously gathered as part of an earlier work capacity process. However, each case will depend on its own particular facts. In this case the initial medical report was based upon a prediction that the operation would be a success and the second subsequent report was obtained before the x-ray findings. The second assessment on the prediction that the x-ray findings would confirm the diagnosis. I would have thought that for such an important step any medical assessment, as far as possible, would be based upon the present evaluation of known facts and not prediction, when it was possible to wait for a short period of time to ascertain readily obtainable materials. 
[39]
Having regard to the importance of the medical assessment, in the statutory framework, it is important that the integrity of the process is carefully examined. I would have thought, on the facts of this case that after the operation, the respondent would have considered, along with the appellant, whether any other rehabilitative measures should be considered. Again, I consider that another occupational assessment should have been made. In saying this I am aware that there are cases where it is entirely appropriate that an earlier occupational assessment may properly form part of the material upon which a fresh capacity to work assessment may be made. However, in this case, as the issue of rehabilitation had not been canvassed, the initial rehabilitation goals had not been attained properly and the initial medical assessment was premature, the appellant at least was entitled after his operation to discuss his proposed career path again with a vocational assessor. 
[40]
For the reasons that I have given I would allow this appeal. It is noted that the solicitors for the respondent predicated the need for fresh medical and vocational assessments, while thinking that there was no further need for another vocational rehabilitation plan. I do not know whether it would be necessary for another plan to be prepared, but I am of the view that discussions should take place between the respondent and the appellant concerning rehabilitation objectives. 
[41]
I, accordingly, set aside the review decision and reinstate the appellant's cover and entitlements. This decision does not preclude the respondent from making a further application. I award the appellant the sum of $1,000 costs and disbursements. 

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