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Accident Compensation Cases

Akuhata v Accident Compensation Corporation (DC, 15/04/04)

Judgment Text

DECISION OF JUDGE J. CADENHEAD ON AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT 
Judge J. Cadenhead
[1]
The appellant has applied for leave to appeal to the High Court against the decision of His Honour Judge M.J. Beattie issued on 9 January 2002. 
[2]
In the application for leave, the appellant submits that the District Court erred in three respects: 
[a]
The WCAP 1 form was not properly completed, either by the ticking of boxes in the selection criteria, and the form was not signed by all panel members; the appellant submits that the Judge erred at law by not recognising the flaws contained in the procedure, when making its determination that the appellant had a capacity to work. 
[b]
That the Judge erred by not recognising the flaws contained in the form WCAP 6, namely, the obtaining of information by the occupational assessor as to whether the appellant was suited by experience, education or training for two particular positions. 
[c]
The medical assessor allegedly placed special conditions on the carrying out of two positions (forklift driver and security guard); previous authority suggested that the assessor could not do so, and the learned Judge erred by not recognising such flaws contained in the medical assessment. 
The Judgment of Judge M.J. Beattie 
[3]
The issue in the appeal before His Honour was whether the respondent was correct, by its decision of 12 February 1999, to determine that the appellant had a capacity for work within the meaning of s 51(2) of the Accident Rehabilitation and Compensation Insurance Act 1992. 
[4]
The appellant was a freezing worker by occupation, and in April 1995 he suffered an injury to his right knee when it was struck by a carcass on the slaughter chain. The injury was described as an acute strain of the medial ligament. At the time of this injury the appellant was aged 36. 
[5]
The appellant was referred to various doctors. Mr Tregonning, orthopaedic surgeon and knee specialist, carried out arthroscopy and debridement of both knees, as the appellant had had previous problems with his knees principally arising from sporting injuries. 
[6]
Following that surgery, Mr Tregonning confirmed that the appellant would not be able to cope with the heavy work involved at the freezing works. 
[7]
In October 1997, the appellant was referred to Mr Colin Hooker, orthopaedic surgeon, for assessment of his physical and working capabilities. Mr Hooker advised that in his opinion the appellant was capable of a wide range of work where he would not be required to undertake lifting or carrying or prolonged standing, walking, particularly moving on uneven surfaces. Mr Hooker confirmed the appellant was not fit to return to his former employment. 
[8]
After vocational rehabilitation, a formal decision was made to refer the appellant for an occupational assessment. The occupational assessor determined the appellant was suitable for eight different job options. 
[9]
The appellant was then referred to Dr Paul Friedman, a rehabilitation medicine specialist, for a medical assessment, and he carried out the assessment on 14 January 1999. Dr Friedman's assessment was that the appellant was medically able to carry out the duties required of a fitness centre worker/sports coach, forklift driver, and security officer, but that the requirements of the five other job options were such that the appellant's physical condition would not allow him to carry out the duties required. 
[10]
Dr Friedman's comments on the three job options confirmed were stated as follows: 
[i]
Fitness centre worker/sports coach: 
“Kere lifts weights at home (upper body only) and coaches rugby. He is capable of working 30 or more hours per week. ”
[ii]
Forklift Driver: 
“The WCAP 6 states that this involves no heavy lifting. Kere is capable of working 30 or more hours per week as a forklift driver provided he has infrequent lifting above 25kg. ”
[iii]
Security Officer; 
“Kere is capable of working 30 or more hours per week as a security officer. ”
[11]
In his decision, Judge Beattie said that the appellant raised some objections as to his vocational competence. He found there was no substance to any objection that the three job options that were considered appropriate, and the assessments made by the duly appointed assessor, could not be said to have been called into question. 
[12]
Judge Beattie noted that Dr Friedman carried out his assessment in January 1999, and that it was shortly thereafter that the respondent made its determination that the appellant had a capacity for work. In the context of the appeal against that decision, Judge Beattie had to look at the situation that pertained at the time that decision was made. Although he could, and did, accept evidence that is formulated later in time, provided that evidence related back to the time in question. 
[13]
The Judge said that the appellant relied considerably on the opinion provided by Dr Wigley, his opinion being given in October 2001 following his examination of the appellant on 3 October 2001, some 33 months after Dr Friedman made his assessment. The opinion of Dr Wigley did not purport to relate back to the period of January/February 1999. Indeed, from the assessment that Dr Wigley carried out, he indicated that there had been considerable deterioration to the appellant's condition since the assessment of Dr Friedman was done. 
[14]
The Judge said it did not assist in the determination of whether the decision made by the respondent in February 1999 was correct or not. 
[15]
The Judge found as a fact that Dr Friedman had carried out his assessment and the manner in which the Court had come to expect medical assessors to carry out an assessment. 
[16]
The Judge said that he noted that the job details as described in the WCAP 6 forms did not include any prolonged activity which could cause the appellant problems, and he found that the proviso which Dr Friedman placed on the activity of forklift driver was simply that, as the job description did not itself indicate that heavy lifting was a factor. The tasks as described in the WCAP 6 form involved the forklift itself carrying out the lifting, and His Honour considered the proviso certainly did not seek to limit any facet of the job description as contained in the WCAP 6 form, but rather it was put in as an observation. 
[17]
In respect to the procedure, the Judge said: 
“[26]
Counsel for the appellant also made submissions relating to the compliance of the respondent with the Procedure, particularly in relation to the initiation of the Work Capacity Assessment Procedure. It is a fact that in the WCAP1 form the Panel decision has not been identified by a tick in either box. If there had been no explanation of this omission and no evidence had been received which indicated that a Panel decision had been made, then the appellant's submission would have force and clearly the Procedure that was conducted would in those circumstances be regarded as being invalid. The Court notes the decisions of Larsen (65/00) and Harris (263/99) in that context. 
[27]
However the Court received an affidavit sworn by the respondent's Tauranga branch medical advisor, Dr Murray Laughlin, who signed the WCAP 1 form, and who deposed to having advised the appellant's case manager to proceed with the assessment process. In those circumstances the Court has received evidence that the Panel did make a decision to require the case manager to proceed with the Work Capacity Assessment Process. 
[28]
The impact of that evidence means that the failure to tick the appropriate box thereby becomes a procedural oversight rather than a substantive defect and under those circumstances I find that it does not call into question the validity of the Procedure subsequently carried out. In that regard I refer to and adopt the reasoning of His Honour Judge Middleton in the decision of Sparrow (57/00). 
[29]
This reasoning is to be contrasted with the reasoning given in the decision of Geerston (29/00) where the Court found that there was no evidence that the Panel had made a decision that the appellant was a suitable candidate to be referred to the Work Capacity Assessment Process and in those circumstances it found that the omission was a matter of substance. As I have stated the evidence of Dr Laughlin cures that oversight and prevents the matter from being of the kind identified in Geerston
[30]
In summary then I find that the respondent has correctly carried out the Work Capacity Assessment Procedure and that its determination to find that the appellant had a capacity for work at the time it did on 12 February 1999, was the correct decision. 
[31]
The jurisdiction of this Court is limited to a consideration of that decision of 12 February 1999 and it is not open for this Court to embark upon a consideration as to whether or not the appellant's capacity for work may have deteriorated since that determination and that the respondent should again look at the appellant's condition to consider whether or not a further assessment should be carried out. ”
The Submissions of the Appellant 
[18]
The appellant submits that the WCAP 1 form was not appropriately ticked, and that the form was not signed by all panel members. The submission is that the criteria must be met before a claimant could be considered for a work capacity assessment. 
[19]
The appellant relies upon the District Court decisions of McCallum v ACC (119/00) and Geerston (29/2000) and submits that the non-compliance of the WCAP procedure was fatal to the work assessment. It is submitted that the omission in this case goes to the substance of the matter, and is not a mere procedural matter. 
[20]
The appellant submits that the WCAP 6 form detailed that self defence skills were required, and that the appellant had no self defence skills, and therefore was not suited by experience, education or training to the position of a security officer. In respect to fitness centre worker/sports coach, the job description related only to the sports coach element of the job, and not to the fitness centre worker element. 
[21]
In the booklet, it is stated that the occupational assessment may be required to undertake additional research on the job requirements, and that in this particular case it was appropriate for the occupational assessor to do additional research on the job requirements of a security officer and fitness centre worker/sports coach. This was not done. 
[22]
There was an attack on the medical assessment on the basis that the medical assessor was alleged to have qualified his certification in respect to the occupations nominated as suitable. 
Decision 
[23]
In respect to the first ground, namely, that the WCAP 1 form was a matter of substance and not that of merely procedure, I am of the view that Judge Beattie considered that issue fairly and squarely in the present case, and found as a fact, after considering affidavits sworn by the branch medical advisor, that there was evidence of the panel making a decision. He then went on to find that the failure to tick the box was a mere procedural oversight rather than a substantive defect. I cannot see that there is any substantial issue of law in this issue fit to be stated for the High Court. 
[24]
In respect to the second complaint that additional research was required by the occupational assessor, it seems to me that the weight to be given to the occupational assessor's report was a matter of fact, and that the Judge found that there was no substance to any objection that the three job options that were considered appropriate, and the assessment made by the duly appointed assessor, could be called into question. This was a factual matter and was determined as such by the learned Judge. 
[25]
The Judge considered the submission that the medical assessor had qualified the job options, but found as a fact that what had been stated was a description rather than a limiting proviso. Again, this was a matter of fact and was determined as such by the Judge. 
[26]
I determine that there are no grounds for stating a case to the High Court on the issues raised. The application for leave to appeal is dismissed. There will be no order as to costs. 

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