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Accident Compensation Cases

Woodford v Accident Compensation Corporation (DC, 17/10/05)

Judgment Text

RESERVED DECISION OF JUDGE J CADENHEAD 
Judge J Cadenhead
The Issues 
[1]
This is an appeal in respect of the respondent's decision made pursuant to section 112 of the Injury Prevention, Rehabilitation and Compensation Act 2001 to cease the appellant's entitlement to weekly compensation. The respondent determined that Mr Woodford, the appellant, has vocational independence and is able to work 35 hours or more per week as a caretaker or cleaner. These findings were upheld by the review officer in her decision dated 23 November 2004. 
[2]
Mr Woodford appeals part of that decision, in particular the medical assessment as to his capacity to work. 
[3]
The following issues are raised by Mr Woodford's appeal: 
[a]
In the absence of the neuropsychological assessment was the individual rehabilitation plan completed?; 
[b]
Was the medical assessment flawed because: 
[i]
Mr Woodford does not have the capacity to perform the mental activities required of this job type; and 
[ii]
Mr Woodford does not have the physical capacity to perform heavy lifting activities identified. 
Medical Background 
[4]
As a result of a motor vehicle accident in May 1999 Mr Woodford suffered extensive injuries including: 
[a]
A closed head injury; 
[b]
Scalp degloving; 
[c]
Fracture C6 lamina; 
[d]
Fractured T3 (anterior wedge); 
[e]
Fractured T4, 5 and 6 (compression fractures); 
[f]
Right hip anterior dislocation; 
[g]
Left arm degloving injury with radial nerve palsy; 
[h]
Fractured pubic rami; and 
[i]
Left shoulder laceration. 
[5]
As a consequence of those injuries Mr Woodford has been assessed as having a 36% whole person impairment; a finding which the respondent does not dispute. 
Narrative of Facts 
[6]
The appellant has an accepted claim for cover for an injury that he suffered on 15 May 1999 involving a motor vehicle accident and as a result he incurred severe and multiple injuries, including a traumatic brain injury. 
[7]
Dr Marshall whose report is dated 19 September 2003 conducted the vocational independence medical assessment (“the VMA”). Dr Marshall concluded that Mr Woodford had no injury-related reason to prevent him from working 35 hours more per week in the following job types: 
[a]
Animal Welfare Worker; 
[b]
Caretaker and Cleaner; and 
[c]
Metal, Rubber and Plastics Assembler. 
[8]
On 22 October 2003 ACC issued a decision letter to the appellant advising that he was deemed to have vocational independence and the ability to work 35 hours or more a week as a: 
[a]
Animal Welfare Worker; 
[b]
Caretaker and Cleaner; and 
[c]
Metal, Rubber and Plastics Assembler. 
[9]
A review application was then lodged in respect of this decision. 
[10]
The reviewer in her decision dated 23 November 2004, concluded that the appellant was fit to perform the nominated job type of Caretaker and Cleaner. 
The Legislation and Legal Principles 
[11]
The relevant provisions of the Injury Prevention Rehabilitation and Compensation Act 2001 (“the Act”) are as follows: 
“89.
Assessment of claimant's vocational rehabilitation needs- 
An assessment of a claimant's vocational rehabilitation needs must consist of- 
(a)
an initial occupational assessment to identify the types of work that may be appropriate for the claimant; and 
(b)
an initial medical assessment to determine whether the types of work identified under paragraph (a) are, or are likely to be, medically sustainable for the claimant. 
 
95.
Conduct of initial medical assessment- 
(1)
A medical assessor undertaking an initial medical assessment must take into account- 
(a)
information provided to the assessor by the Corporation; and 
(b)
any of the following reports information, or comments provided to the assessor: 
(i)
medical reports requested by the Corporation before the individual rehabilitation plan was prepared: 
(ii)
any other relevant medical reports; and 
(c)
the report of the occupational assessor on the initial occupational assessment; and 
(d)
the medical assessor's clinical examination of the claimant; and 
(e)
any other information or comments that the claimant requests the medical assessor to take into account and that the medical assessor decides are relevant. 
(2)
The medical assessor must also take into account any condition suffered by the claimant that is not related to the claimant's personal injury. 
(3)
The Corporation must provide to a medical assessor all information the Corporation has that is relevant to an initial medical assessment. 
96.
Report on initial medical assessment- 
(1)
The medical assessor must prepare and provide to the Corporation a report on the initial medical assessment. 
(2)
The report must- 
(a)
contain the determination required by section 89(b); and 
(b)
take into account the matters referred to in section 95. 
(3)
The Corporation must provide a copy of the report to the claimant. 
 
107.
Corporation to determine vocational independence- 
(1)
The Corporation may determine the vocational independence of- 
(a)
a claimant who is receiving weekly compensation: 
(b)
a claimant who may have an entitlement to weekly compensation. 
(2)
The Corporation determines a claimant's vocational independence by requiring the claimant to participate in an assessment carried out- 
(a)
for the purpose in subsection (3); and 
(b)
in accordance with sections 108 to 110 and clauses 24 to 29 of Schedule 1; and 
(c)
at the Corporation's expense. 
(3)
The purpose of the assessment is to ensure that comprehensive vocational rehabilitation, as identified in a claimant's individual rehabilitation plan, has been completed and that it has focused on the claimant's needs, and addressed any injury-related barriers, to enable the claimant- 
(a)
to maintain or obtain employment; or 
(b)
to regain or acquire vocational independence. 
 
109.
When claimant's vocational independence to be assessed- 
(1)
The Corporation may determine the claimant's vocational independence at such reasonable intervals as the Corporation considers appropriate. 
(2)
However, the Corporation must determine the claimant's vocational independence again if- 
(a)
the Corporation has previously determined that the claimant had- 
(I)
vocational independence under this section; or 
(ii)
a capacity for work under section 89 of the Accident Insurance Act 1998; or 
(iii)
a capacity for work under section 51 of the Accident Rehabilitation Compensation Insurance and Act 1992; and 
(b)
the Corporation believes, or has reasonable grounds for believing, that the claimant's vocational independence or capacity for work may have deteriorated (due to the injuries that were assessed in the previous vocational independence or capacity for work assessment). 
(3)
The claimant may give the Corporation information to assist the Corporation to reach a belief under subsection (2)(b). 
 
112.
Claimant with vocational independence loses entitlement to weekly compensation- 
If the Corporation determines under section 107 that a claimant has vocational independence. the claimant loses his or her entitlement to weekly compensation 3 months after the date on which he or she is notified of the determination. ”
[12]
The High Court in Ramsay v Accident Insurance Corporation [2004] NZAR 1 John Hansen J considered the position of the medical assessor in the statutory framework and derived the following principles: 
“[52]
Section 89 allows the respondent, at its discretion, to have an insured assessed to determine the capacity to work. Once the respondent determines to exercise that right, then the assessment must be carried out in accordance with the provisions of ss 93 to 100. 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 subss (2) and (3) of that section … However, [another medical opinion] could be placed before the medical assessor and considered in terms of s 99. Indeed, the medical assessor is required to take those views into account. Once the respondent determines to require an insured to undergo the process determining capacity for work … on the 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. They have not provided any other method for 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 the contrary view of another [medical opinion]. There will be situations where the respondent and the Court can go behind the assessment, but they will be quite limited …  ”
[13]
John Hansen J said the limited situations where the respondent and the Court can go behind the assessment 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. 
[14]
His Honour added that 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. 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. 
[15]
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 is liable to provide that is important. (Grimstone (246/99, Beattie DCJ)). 
[16]
Because of the importance of a determination that the appellant has a capacity to work by the medical assessor, it is equally important that the statutory precondition procedures are complied with by the respondent. The statutory intent is that the respondent will, along with the appellant, endeavour to rehabilitate the appellant, and after that process has been completed, then the respondent can move to the step of determining the issue of capacity to work. The twin elements of “rehabilitation” and “capacity to work” complement one another. The discretionary statutory power vested in the respondent is designed to affect that purpose. The statutory power must be exercised reasonably in accordance with administrative law principles having regard to that statutory purpose. 
[17]
In the case of Huurdeman (AI 464/03) I dismissed a vocational capacity finding on the grounds that the medical certification was premature having regard to the objective circumstances of that case. If further medical treatment or the prospect of that treatment could impact on the capacity to work then that would be a premature igniting of the exit procedures under the legislation. 
The Vocational Occupation Assessment 
[18]
The vocational occupational assessment in respect to the occupation of caretakers and cleaners describes the job as cleaning and keeping in orderly condition the interiors of commercial and private buildings and vehicles and maintains buildings and performs a variety of tasks to eradicate pests and vermin.In respect to heavy lifting, pulling or carrying the description is uncommon (e.g. may carry back- packs of up to 20kg in pest control). 
[19]
In respect to mental activities: planning, organising, communicating, decision-making. 
[20]
In respect to waiters the occupation of a waiter and bar tender the mental activities required are communicating and organising. This seemed to be ruled out by the medical assessor, because, inter alia, mental activities are required. Similarly the job of car, taxi, and light van driving required the mental activities of communicating, organising, decision making and decision making. The medical assessor ruled out that occupation, inter alia, because he had only a restricted licence and the job might require too much self direction. 
The Medical Reports 
[21]
The medical component of vocational independence assessment was carried out by Dr Marshall on behalf of the Corporation. He took into account various medical reports including those prepared by Dr Kahan, Dr Caradoc-Davies and Ms Marilyn Cryer. 
[22]
Ms Cryer produced a report dated 24 November 1999. The purpose of the report was to undertake a neuropsychological assessment and make recommendations for rehabilitation. Ms Cryer's opinion was that: 
“Mr Woodford has made a good recovery from his brain injury. His current difficulties are in the area of reduced visual attention concentration and information processing, reduced immediate visual memory and a reduced frontal lobe functioning. Further recovery can be expected over the coming months. 
Recommendations: 
(1)
Driving assessment to identify any current problems that would interfere with safe driving. 
(2)
It would be unwise for Mr Woodford to use a fire arm until such time as he is fully recovered from his injury. 
(3)
Continued abstinence from alcohol. 
(4)
Reassessment in 12 months time when further recovery is to be expected …  
He has low normal visual attention/concentration span and information …  
Deficits 
He has reduced visual attention/concentration span and information processing capacity for complex tasks. 
He has reduced short term /immediate visual memory. 
He has a poor ability to plan. 
He has mildly reduced frontal lobe functioning. ”
[23]
Ms Cryer recommended Mr Woodford be reassessed in twelve months time when further recovery was to be expected. 
[24]
In 2002 the appellant sought an independence allowance. As part of that application Dr Caradoc-Davies, an approved ACC medical assessor, performed a medical examination of Mr Woodford. In his report dated 6 June 2002 he details medical information he considered as part of that assessment. This medical information included Dr Kahan's report and the report of Ms Cryer dated 24 November 1999. In assessing Mr Woodford's eligibility for the independence allowance Dr Caradoc-Davies reported on the degree of Mr Woodford's whole person impairment. At page 13 of his report he assesses the degree of whole person impairment of Mr Woodford to be 36%. This includes impairment of 19 % relating to his closed head injury. Dr Caradoc-Davies concluded the claimant's condition was stable. Significantly, notwithstanding his finding that there was a degree of impairment, Dr Caradoc-Davies variously describes the impairment as being minimal or alternatively, while impairment exists, he finds Mr Woodford is able to perform satisfactorily. Mr Woodford does not suggest that the impact of the head injury related problems and his ability to work has deteriorated since his initial neuropsychological assessment conducted by Ms Cryer. 
[25]
Dr Michael Kahan, on behalf of the Corporation prepared the initial medical assessment. Dr Kahan is an appropriately qualified and experienced medical assessor. 
[26]
Dr Kahan states: 
“The information provided sufficient details of the client's history for the purpose of this assessment. ”
[27]
Dr Kahan refers to the report prepared by Marilyn Cryer, neuropsychologist dated 24 November 1999 and reports of the appellant's present medical condition at page 4 as follows: 
“Paul mentioned to me today that he has problems with his short-term memory as well as irritability — he mentioned he had difficulty getting on with family members such as his grandmother whom he previously got on well with. He also suffers from headaches intermittently. … He mentioned he tends to have poor short-term memory and has forgotten things he has recently said. Paul has difficulty multitasking. He mentioned his concentration span is poor and he is easily distracted in situations such as in a pub …  ”
[28]
Dr Kahan's opinion regarding his mental state was as follows: 
“Paul was able to register 3/3 items. He was fully orientated in time, place and person. He scored 2/3 in his five minute recall. He was able to carry out the serial 7's promptly with no errors. There is no evidence of dysnomia. He was able to follow a 3-step command and was able to read. He was able to write a simple sentence. There was no evidence of constructional apraxia. He was able to draw a clock-face correctly. However, he was poor on word generation and could only recall four words beginning with ‘f’. He had difficulty learning new words. He performed well on testing for similarities as well as on proverbs. ”
[29]
As to his opinion Dr Kahan reported: 
“Caretaker and Cleaner (Caretaker) — This would be suitable in view of the ability to work in a structured environment and avoidance of heavy lifting. ”
[30]
Finally, Dr Marshall, an occupational medical advisor, completed Mr Woodford's vocational independence assessment on 17 September 2003. In his report he documents the medical information made available for the purposes of that assessment. Those reports include reports prepared by Drs Caradoc-Davies and Kahan and Ms Cryer. Dr Marshall observes at page 2 of his report that he had received “adequate information for the vocational independence assessment.” In particular he finds “It does not conflict with Mr Woodford's own history” which he then sets out. 
[31]
Dr Marshall notes Mr Woodford's health problems related to his brain injury at page 2 recording: 
“He had ongoing problems due to the closed head injury and these include lack of insight in his physical limitations and judgment according to his general practitioner. ”
[32]
Dr Marshall comments that it would be better for Mr Woodford to be in a position where he is under supervision as he needs direction. 
[33]
Dr Marshall makes specific reference to Ms Cryer's report at page 2 recording: 
“The neuropsychologist in 1999 indicated that his difficulties related to reduced visual attention, concentration and information processing. He also had difficulties with reduced immediate visual remember [sic] and reduced frontal lobe functioning. Much of the neuropsychological report was normal. However deficits were indicated in reduced visual attention, concentration span and information processing capacity for complex tasks, reduced short term/immediate visual memory, a poor ability to plan, and mildly reduced frontal lobe functioning. ”
[34]
From page 3 of Dr Marshall's report he sets out in detail Mr Woodford's present position. He completed a Folsteins mini mental status examination recording that the examination was completed well by Mr Woodford (page 5). His overall conclusion is set out at page 6 of the report where he states: 
“Paul had very major injuries at the time of his accident. He has recovered remarkably well considering these. He indicates his main problems would relate in workplace situations to lifting heavy items due to problems with his left arm. … He is keen to get back into work and I think this is the best thing for him. ”
[35]
He concludes Mr Woodford had the capacity to work 35 hours per week as a cleaner/caretaker. 
[36]
Dr Gordon Hancock, an occupational physician, was engaged by Mr Woodford to review Dr Marshall's medical assessment. He did not carry out a detailed neuropsychological assessment, relying instead on Marilyn Cryer's report of 24 November 1999. Secondly, he took into consideration the results of the Folsteins status examination performed by Dr Marshall. In his report dated 16 January 2004 he records Mr Woodford's ongoing problems as follows: 
“Head Injury:- 
He has significant problems with concentration, memory and insight. He tends to avoid social contacts and has a tendency to ‘snap’ when under pressure. He also continues to suffer severe headaches for which he takes upwards of 14 panadol a day. 
Vertebral fractures; Mr Woodford continues to suffer significant pain from his upper and mid-back, radiating into the front of his chest. He finds twisting, bending and crouching difficult and is unable to comfortably lift more than 5 kg. …  ”
[37]
He considered Mr Woodford's ability to undertake the caretaking/cleaner role. He observed that squatting, crouching, twisting and kneeling are all listed as work in tight spaces and that the requirement to possibly carry a 20 kg backpack “was hardly suitable for somebody with four thoracic veritable fractures.” His overall conclusion was that Mr Woodford did not have the ability to perform the cleaner/caretaker role for 35 hours per week. He considered Dr Marshall's report to be flawed in that he did not give adequate recognition to various tasks involved in listed jobs and that he failed to consider the mental activities of the listed jobs in light of Mr Woodford's post head injury problems. 
[38]
In a second report dated 5 October 2004 Dr Hancock confirms that he had not undertaken any neuropsychological assessment and was reliant on Ms Cryer and Dr Marshall's report. However, he affirmed his earlier conclusion. 
The Submissions of the Respondent 
[39]
While it is correct that Mr Woodford has not undergone a further neuropsychological assessment after 12 months as recommended by Ms Cryer, it does not follow that he has not completed the individual rehabilitation plan as agreed between the Corporation and Mr Woodford. While a recommendation was made for a reassessment that recommendation was not adopted as part of the individual rehabilitation plan. 
[40]
In any event, Dr Marshall took into consideration Ms Cryer's report. His approach was conservative not having had the benefit of a second neuropsychological assessment. Thus the information that he took into account was the findings of the neuropsychological assessment completed in November 1999. 
[41]
Finally, Mr Woodford contends that there is an inconsistency in Dr Marshall's approach where he has assessed him as not having a capacity to undertake work related to the taxi, light van driver job type. One of the reasons identified being that this job type “might well require too much self direction.” However, the job type indicates a range of mental activities that are similar to those identified for the caretaker and cleaner roles. 
[42]
There is no inconsistency and Dr Marshall's conclusion is reached in respect of the two job types. First, the conclusions are not determined by a single variable namely the mental activity component of the relevant job types. Secondly, Dr Marshall clearly differentiates between the two job types, highlighting difficulties Mr Woodford may have in coping with a role that has a “considerable” component of self direction. This point of differentiation was correctly and properly identified and that there is no error in the conclusion reached. Indeed it is consistent with the comments made by Mr Woodford's general practitioner in his report dated 20 August 2003 where he observed that Mr Woodford “ … would not be suitable in a position which would require organisational skills and independence; he would be better in a supervised position, eg assistant. He needs direction and supervision — but his temperament is not a very easy going one.” Dr Marshall makes direct reference to the G.P.'s findings. Dr Hancock does not advance any new evidence to support a case that Mr Woodford does not have mental capacity for job types identified. 
[43]
There is no evidence to advance Mr Woodford's case that his brain injury problems are such that he does not have the capacity to undertake caretaking/cleaning roles. Dr Hancock's assertion that Dr Marshall in his report dated 16 January 2004 failed to consider the mental activities identified in this job type is plainly wrong. While Dr Marshall's summary of the job type does not identify mental activities, in the preceding part of his report he has considered the historical and current medical evidence concerning Mr Woodford's brain injury related problems in detail. 
[44]
Mr Woodford has also objected to the medical assessment on the basis that he does not have the physical capacity to carry out the full range of possible tasks identified in the job type. In particular Mr Woodford argues that he is not able to carry a “20 kg backpack”. Dr Hancock is of the opinion that Mr Woodford lacks physical capacity for this type of work, for this reason. 
[45]
Neither Mr Woodford nor Dr Hancock have considered the job detail sheet in toto where it is stated “heavy lifting, pulling or carrying is uncommon.” It then describes by reference to industry how this may arise eg “make a backpack of up to 20 kgs in pest control.” 
[46]
It is the job type rather than the employer or industry that is relevant to this assessment (Reeves343/02). Dr Marshall has properly considered Mr Woodford's capacity for this work in the wider sense of not focusing on any one employer or an industry. 
The Submissions of the Appellant 
[47]
The vocational assessment noted that in relation to the “Animal Welfare Worker” job type that: 
“Standing, sitting and walking are intermittent. Squatting is intermittent, bending is intermittent. Contact with skin irritants or water is featured. Heavy lifting is featured. Repetitive movements are intermittent. Driving can be included. The use of hand tools is intermittent. I think that the heavy lifting involved would not preclude him from this area, particularly as it is an area of interest for him. He indicates he would like to be a dog ranger and feels he could perform this work well. ”
[48]
In relation to the job type “Caretaker Cleaner” he made the following comments: 
“Standing and walking are intermittent. Squatting is intermittent. Bending is intermittent. Driving, stretching up or across, and twisting are featured as intermittent. The use of hand tools is intermittent. Contact with skin irritants or water is featured. Repetitive movements are intermittent. The work is reasonable by the functions described. He indicates that he really wouldn't like this type of work and feels that he would nut off if he had to do it. ”
[49]
In relation to the “Metal, Rubber and Plastics Assembler” job type, Dr Marshall noted: 
“Standing is intermittent to frequent with sitting indicated to be intermittent/task dependent. Stretching up is intermittent. Contact with skin irritants or water is featured. Heavy lifting is featured as intermittent, as are repetitive movements. The use of hand tools is constant. Mental activities are indicated to be required. As it indicates that heavy lifting would not be required for plastic and rubber goods assemblers for these areas it would be reasonable. He indicates again to this area that he wouldn't enjoy this work as it would be indoors for too much of the time. ”
[50]
A report was then subsequently commissioned from Dr Gordon Hancock, occupational physician, which is dated 16 January 2004. Dr Hancock made the following conclusions: 
“Animal welfare officer. 
The ACC 196 sheet lists bending, standing, walking, sitting, squatting and crouching. Heavy lifting is considered to be task dependent but would clearly be present in some roles where larger animals would need to be handled. The activities of organising and communicating are listed. On the basis of the above, this work is clearly beyond Mr Woodford's ability. 
Caretaker/cleaner: 
Squatting, crouching, twisting and bending are all listed as is work in tight places. The requirement to possibly carry a 20kg back pack is also listed—hardly suitable for someone with 4 thoracic vertebral fractures. 
Metal, rubber, plastic assembler 
This was listed on the basis of Mr Woodford's 6 month experience of work at Shacklocks 20 years ago. Whether that qualifies him for assembly work in 2003 is doubtful. 
The ACC 196 lists standing, stretching, hand to eye co-ordination and accuracy. All these would cause problems for Mr Woodford. 
In addition, heavy lifting is listed for metal assemblers — the only area where Mr Woodford has any previous experience. 
Conclusion: 
On the basis of Mr Woodford's assessed impairment and disability and the information supplied on the ACC 196 sheets, he does not have the ability to do any of the three listed jobs for 35 hours per week. 
Dr Marshall's report is flawed in that he did not give adequate recognition to the various tasks involved in the list of jobs, tending to discount them if they were intermittent or task dependent. He also failed to consider the mental activities of the list of jobs in the light of Mr Woodford's post head injury problems. ”
[51]
Dr Marshall responded to that report by letter dated 5 October 2004. The salient portion is as follows: 
“Considering Dr Hancock's points I am obviously at variance with him. Some of the history he indicates is slightly different from that given to me by Mr Woodford on 17/9/03. The examination taken seems rather brief and interestingly contains no attempt to evaluate the post head injury problems. It is therefore difficult to see how he attests, in the final line of his conclusion on Page 3 at the end of his 2½ page letter, that there's been a failure to consider that mental activities of the list of jobs in light of the post head injury problem. 
I think Mr Woodford could perform work for 35 hours per week. I see little in Dr Hancock's report to alter this opinion and would stick to the original report provided. ”
[52]
In turn Dr Hancock responded by letter dated 2 November 2004 as follows: 
“Essentially, there are two issues that impact on Mr. Woodford's vocational independence: 
His physical capacity to carry out he full range of possible tasks in the job types in question. I am unable to add to the comments made in my report of 16/01/04. 
The impact of Mr. Woodford's head injury related problems on his ability to work. I did not carry out a detailed psychological assessments as this was already available from Marylin Cryer's report of 24/11/99. (it is of interest that a reassessment after 12 months was recommended but never carried out). Ms. Cryer reports reduced information processing capacity, reduced visual attention/concentration, reduced short term memory, poor ability to plan and reduced frontal lobe functioning. I did not carry out a Folstein's test for cognitive impairment as there seemed little point as Dr. Marshall had already done it and, in any event, it would not have picked up the rather more subtle deficits identified in Ms. Cryer's report. 
While these changes are subtle, they would have a profound impact on Mr. Woodford's ability to cope in a job that was unfamiliar to him and where planning and organising skills are necessary or where work with a high level of accuracy and co-ordination is called for. ”
[53]
It is submitted that vocational independence medical assessment undertaken by Dr Marshall is flawed. 
[54]
The only job type that the reviewer considered the appellant to be fit for was that of caretakers and cleaners. Dr Hancock points out this job type might require a person to carry a 20kg back pack which he said was hardly suitable for someone with 4 thoracic vertebrae fractures. 
[55]
Dr Marshall makes no comment about this point of criticism by Dr Hancock and does not refute it. His finding that this job type is suitable is summed up in the following sentence: 
“The work is reasonable by the functions described. ”
[56]
Significantly, no mention is made about Mr Woodford's ability to handle this job type given the mental activities required of “planning, organising, communicating and decision making.” 
[57]
In fact, the only indication that Dr Marshall has taken Mr Woodford's head injury deficits into account at all, is in relation to the taxi, light van driver job type, where he states: 
“Given that he only has a restricted license this would not be suggested, and might well require too much self direction. ”
[58]
The mental activities noted for this job type include: 
“Communicating, organising, decision making (teaching for driver instructor). ”
[59]
It appears that Dr Marshall has interpreted the mental activities requirement of a taxi, light van driver as requiring self-direction and he has concluded that Mr Woodford could not fulfil that requirement, yet substantially the same description was given in the mental activities required for a caretaker and cleaner. Having found that Mr Woodford could not manage the mental activities part of the drivers job type, he was bound to find that he could not manage the caretaker and cleaner job type as well. 

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