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Accident Compensation Cases

Salmon v Accident Compensation Corporation (DC, 30/07/04)

Judgment Text

RESERVED JUDGMENT OF JUDGE D A ONGLEY 
Judge D A Ongley
[1]
The issue in this case is whether the respondent was correct in its decision based on an assessment of the appellant's capacity to work under the Accident Insurance Act 1998
[2]
In 1990 the appellant lodged a claim for cover for noise induced hearing loss arising from exposure to noise in his occupation as a cellist in the New Zealand Symphony Orchestra. He is a 1982 transitional claimant with cover under section 28 of the Accident Compensation Act 1982 for hearing loss arising out of employment. The appellant would therefore have cover and entitlements for the physical and mental consequences of his injury or accident. 
[3]
His hearing injury forced him to leave the New Zealand Symphony Orchestra after 34 years when advised by Jan Morris an audiologist that his occupation was an ongoing threat to his hearing and his health. In March 2002 the appellant entered the Work Rehabilitation Assessment Process and the occupational and medical assessments were completed in July 2002. 
[4]
ACC issued a decision to Mr Salmon on 5 November 2003 advising that he had been assessed as having the capacity to work 35 or more hours a week in four different types of work and that his weekly compensation would cease in three months. He was considered able to work in the following occupations: 
1.
Musician/Instrumentalist (solo and accompanist) 
2.
Music Teacher 
3.
Radio Broadcaster 
4.
Sales Representative 
[5]
This assessment began before commencement of the Injury Prevention, Rehabilitation, and Compensation Act 2001 and it was therefore conducted under the provisions of the Accident Insurance Act 1998. The assessment took effect under the 2001 Act and the appellant's weekly compensation ceased under section 369(2). 
[6]
In June 2002 Cathy Cunningham carried out an occupational assessment. The four jobs identified for the appellant were musician, music teacher, radio broadcaster and sales representative. 
[7]
Ms Thistoll for the appellant argued that the occupational assessment was fundamentally flawed and should be set aside. Mr Corkill for the Corporation submitted that the work capacity assessment was soundly based and could not be regarded as wrong or flawed. 
[8]
To begin with Mr Blair Christian, occupational medical specialist examined Mr Salmon and recorded the activities that he could engage in. In a report of 2 October 2001 he found that Mr Salmon was very keen to return to work full-time in roles such as music advising, music teaching or function music playing, all of which he felt he could manage. Mr Salmon considered that for him it would not be worth retraining in a new field. Dr Christian considered that Mr Salmon's condition did not preclude from him a return to full time work and that he was capable of work in the roles mentioned provided he avoided loud noise exposure. He was recommended for the WRAP process. 
Assessments 
[9]
The work rehabilitation assessment was carried out by Cathy Cunningham, a work rehabilitation assessment consultant. On 7 June 2002 she wrote identifying the four positions which are under consideration in this appeal, the last of which she described as “sales representative - music industry”. However, Ms Cunningham's covering letter to the ACC was expressed so tentatively that it is clear she had grave doubts about the appellant's suitability for the sales representative position and any jobs involving the use of computer technology. She wrote: 
“I have only listed 4 work options for Christopher as his skills are actually very limited to the music industry. I understand that his computer skills are very basic and that his sales experience was not at all successful. I understand that he tried selling boats and did not sell one boat in over 18 months. I cautiously include sales in the music field in this assessment. I hope that it would be more realistic than any other sales as this is Christopher's field (music) of expertise. ”
[10]
In her letter Ms Cunningham stated that the jobs she listed were limited because: 
“Christopher was a very co-operative client to work with, however at 62 years of age and having only ever worked in the music industry, it was a challenge to say the least to think of any other work options that would be realistic for him. ”
[11]
The medical assessment was then undertaken by Dr G Kanji who reported to ACC on 19 July 2002. There is no dispute about the Mr Salmon's general physical fitness. It is effect of noise which affects his capacity to work, therefore Dr Kanji considered him unfit for the occupation of instrumentalist in a group. He did consider Mr Salmon fit for the work of a radio broadcaster but said: 
“Chris is not qualified for the tasks of this position. He has played music over the radio but has never been a broadcaster. From a physical perspective he feels capable of this position for 35 hours a week. Christopher is physically fit for the tasks of this position as identified by the vocational assessor for 35 hours a week. ”
Review 
[12]
The Reviewer referred to Waters (116/00) and Ramsay v Accident Insurance Corporation (High Court Dunedin, AP 412/14/02, 12 December 2002, John Hansen J). He found that Mr Salmon had agreed that he had the ability to perform the jobs discussed with the occupational assessor and there was sound evidence that he had been able to work as a music teacher; and that further medical opinion put before the Reviewer (from a Mr Cherry, counsellor and Ms Morris, Audiologist) who raised concerns over Mr Salmon being placed back into full time work, was insufficient to overturn the assessment made by Dr Kanji. In short the Reviewer found that there was insufficient evidence to show that the assessments were wrong. 
[13]
I will now deal with the four occupations on the appeal material as follows: 
Musician or music teacher 
[14]
The assessor considered Mr Salmon able to work as a musician for 35 hours per week. Ms Thistoll for the appellant submitted that was not realistic. Mr Salmon is an accomplished cellist and pianist. His professional career has been as a cellist but he is able to perform as a salon pianist or accompanist. In an affidavit Mr Salmon deposed that he had hand delivered his custom produced marketing card to most local function centres and had promoted himself by performing without charge at venues including Malvina Major Retirement Home and Government House. But he was able to average only 4.65 hours per week of paid employment in the 2004 year. 
[15]
The appellant submits that the position of musician should not have been included as a job option by the occupational assessor. Reference is made to Rivers (300/02) in which Judge Beattie dealt with the problem of a certified capacity for work in a type of employment which typically does not offer 30 hours employment per week. 
[16]
Furthermore Ms Thistoll submitted that the occupational assessment was flawed because in effect it recommended that Mr Salmon return to his pre-accident occupation which he demonstrably cannot do. Counsel pointed to comments on the Kiwi Careers website supporting the view that Mr Salmon's opportunities as a musician would be limited: 
“The outlook for professional musicians is average. Due to New Zealand's small population, opportunities for full-time employment as a musician are limited. However, there is an increasing number of musicians being trained. Many of these move overseas to continue their career. 
A factor influencing the number of professional musicians employed is the amount of government funding …  
The main source of funding is still from public performances. For classical musicians the competition is intense, as there are only a few orchestras in New Zealand and limited full-time positions. Contract work is available in these orchestras, but many supplement their incomes by teaching music or working in other areas. ”
[17]
In relation to teaching, the case manager's work ready report noted that Mr Salmon undertook a three week work trial with Naenae College Music Department. He found the atmosphere chaotic from a noise perspective and found the acquisition of computer skills for the Sibelius music programme challenging. There is evidence that it is not possible to get work for 35 or even 30 hours per week teaching cello. Mr Salmon's professional qualifications are with cello rather than piano and he does not have formal qualifications to teach piano. 
[18]
Mr Corkill submitted that information on a website, whether it be Kiwi Careers or NZSCO, is simply a “reference point” for the assistance of an assessor. It has no statutory endorsement as Judge Beattie stated in Toi (149/03). The Act requires the occupational assessor to make the relevant judgment, including whether a particular vocation actually exists. He submitted that the opinon of “average outlook” for professional musicians on the Kiwi Careers website does not serve to contradict the occupational assessment. Mr Corkill submitted that Mr Salmon's extensive experience as a cellist and pianist do not suggest that he would be disadvantaged in seeking work as “function pianist/cellist” as advertised on his card, or by actively seeking other opportunities 
[19]
In Dr Kanji's medical assessment he discussed the effects of Mr Salmon's tinnitus and noted: 
“Mr Salmon has a constant ring/cicada-like tinnitus. With the exposure to excessive noise, a bulldozer-like tinnitus occurs, also ear pain and a general fullness in the ears. 
Mr Salmon wears foam earplugs to attenuate many everyday noises, e.g. cutlery, restaurants, brakes on buses, street noises, etc, and he wears earmuffs to attenuate louder intensity noises and more constant loud noises, e.g. the movies. 
Mr Salmon still suffers from hypersensitivity to excessive noise exposure. ”
[20]
Concerning work as a musician he said: 
“Christopher has a hypersensitivity to noise and suffers from tinnitus. Limitations to working include working with loud noises. Working in a quiet environment would be suitable. 
Musician/Instrumentalist. 
Christopher is physically fit for the tasks of this position as identified by the vocational assessor as a solo or accompanist but not in a group situation. He is able to play solo and as an accompanist for 35 hours a week. He could not however play in a group situation for any length of time. Chris agrees with this statement: ”
[21]
For the purpose of the appeal an opinion was obtained from Dr Mark Huthwaite, psychiatrist. Mr Huthwaite considered that the tinnitus had caused significant psychological distress and a progressive deterioration in Mr Salmon's level of psychological, social, and occupational functioning. The report does not have the weight of an occupational assessor's report, however it confirms what Dr Kanji has had to say about the difficulty in playing in group situations for any length of time. 
[22]
The view that I reach from this material is that whatever the job availability may be for musicians generally it is readily apparent that Mr Salmon's prospect of getting regular employment for 35 hours per week is remote or non-existent. He is excluded by his injury from all ensemble work in which there is a high level of sound or where he would have to engage for any length of time. He is not qualified to work as a teacher in schools where computer skills are essential. That leaves a limited field of private teaching, solo work, some chamber music work or function performance with or without a group of musicians. 
[23]
The “average” availability of work for musicians generally just does not apply to the assessment of Mr Salmon's case in particular. It is fair to accept without needing evidence that his kind of music performance skills are “non-commercial” in the modern world and available work in a given geographical area must be very limited, as he claims. Ms Thistoll noted that the Kiwi Careers page for musicians refers to limited opportunities due to New Zealand's small population and to the increasing importance of computer skills. While the Court should not substitute an opinion without supporting evidence for the opinion of the occupational assessor, I find this case is clear enough so to have no hesitation in accepting Mr Salmon's own evidence of the lack of available work in the Wellington Hutt Valley area. I find that the employment option open to him cannot possibly provide work of 35 hours per week, being the measure for vocational independence under the 2001 Act. 
Radio Broadcaster 
[24]
In her submissions, Ms Thistoll referred to descriptions of requirements for employment as a radio broadcaster in the NZSCO and Kiwi Careers, which are much as would be expected. The NZSCO suggests the training and experience required is “2-3 months on-the-job training and/or related experience. Communication, reporting, technical, planning and organisation skills.” 
[25]
The evident reason for recommending such work for Mr Salmon is that he is suitable by virtue of his skills and experience. There is however no indication that his skills and experience qualify him for work as a radio broadcaster beyond his communication ability and knowledge of music. The appellant has no training or experience as a radio broadcaster. Ms Thistoll submitted that the assessor had put forward this option in error. She submitted that the appellant has no education, training or experience as a Radio Broadcaster. He was a radio performer only, performing live presentations, recorded chamber music and solo performances. Ms Thistoll submitted that the job as a radio performer utilized his musical skills only. Dr Kanji the medical assessor noted in his report that Mr Salmon had no experience. 
[26]
A Kiwi Careers web page draws on statistical information in stating that: 
“Staff turnover for radio broadcasters is low, as radio stations usually want broadcasters that are already well known and keep them on for long periods of time. However, there are positions available in a smaller number of regional radio stations, which still hold a niche market providing local content and style. 
Funding may also have an effect on the number of jobs available in the future, especially since the public broadcasting fee has now ceased. 
Over recent years radio broadcasters have had to increase their computer skills, especially in relation to radio broadcast technology, and in some cases may fill other roles outside their broadcast work such as copy writing. This is especially the case for smaller stations. A competitive market has also meant creativity and broadcast flair has become more important. ”
[27]
As a matter of common sense it is clear that Mr Salmon is not qualified for the demands of a broadcaster in a commercial radio station directed to the more energetic sector of the market. Neither does he have experience in radio journalism or news broadcasting. He would probably be well equipped as a broadcaster for the concert programme or for an occasional musical commentary. It is fair to assume that at any given time one person in the whole of New Zealand is actively broadcasting for the concert programme. It cannot possibly be a readily available job. It may well be that there is behind the scenes broadcasting work which Mr Salmon would be capable of doing, but he has not been assessed for that. I am satisfied that Mr Salmon is not suited by his experience, education or training for the position of radio broadcaster. 
Sales representative 
[28]
The assessor hesitantly put forward sales representative as a type of employment that may be suitable for the appellant. It was recorded in the occupational assessment that the appellant failed in a job as a boat sales representative. During 18 months he did not sell a single boat so his job was terminated. The occupational assessor said “I cautiously include sales in the music field in this assessment. I hope that it would be more realistic than any other sales as this is Christopher's field (music) of expertise”
[29]
Ms Thistoll submitted that Mr Salmon's experience shows he does not have and did not gain the skills to be a sales representative. He had an interest in boating but that did not equate to being a successful boat sales representative. She submitted that the position is similar to that in Oliver 14/04 where the claimant's previous failure in an aspect of a recommended job contributed to the Court finding that the claimant was not suited to the recommended job. 
[30]
Mr Corkill submitted there is no reliable evidence why Mr Salmon failed in his endeavour, whether due to lack of skills or market factors. He said the assessor made the point that a poor track record with boat sales should not rule out Mr Salmon doing well selling music related products such as instruments. He submitted that the evidence shows that Mr Salmon is articulate and a good communicator with an interest in sales and has been assessed as having capacity to work as a sales representative. 
[31]
I consider that this is an occupation which was recommended cautiously with reference to the relatively limited field of music or instrument sales. It was not based on any relevant selling experience and it followed what appears to have been a spectacular failure as a sale representative for boats. There is no indication that Mr Salmon has any particular ability as a salesperson. His suitability has to be derived from his communication skills and knowledge of music, instruments and performance which could be adapted to a selling occupation. 
[32]
Ms Thistoll referred to Judge Cadenhead's decision in Schofield (235/03) citing Meiklen (207/01) in which Judge Beattie considered the words “work” or “job” were used in a general or generic sense and not in a particular sense to identify to a particular employer, category or occupation type. A job option must be viewed from the perspective of what is generally required or might be required of, in this case, a sales representative and not further refined to a sales representative specialising in selling musical products. Mr Salmon's specialisation would be likely to be even narrower than musical products generally. He apparently has no experience relating to electronic music technology and associated musical instruments, nor is it apparently suggested that his experience covers a range beyond orchestral instruments with which he is familiar. 
[33]
In her covering letter the Occupational Assessor said: 
“Christopher was a very co-operative client to work with, however at 62 years of age and having only ever worked in the music industry, it was a challenge to say the least to think of any other work options that would be realistic for him. ”
[34]
That represents the problem in Mr Salmon's case. His experience is highly skilled in a very narrow field. For the reasons that I have outlined I find that the occupational assessment was flawed. It cannot withstand close scrutiny and in light of the countervailing evidence presented in this case I find that it was wrong in assessing Mr Salmon as suited for the suggested occupations by reason of experience, education, or training, or any combination of those things. 

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