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Accident Compensation Cases

Hay v Accident Compensation Corporation (DC, 24/05/06)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
The issue in this appeal arises from the respondent's decision of 20 February 2002, whereby it determined that the appellant had a Capacity for Work within the meaning of Section 15 of the Act in two employment types, namely Teacher Aide and Assistant Life Skills Tutor. 
[2]
The points raised in this appeal by Mr Shepherd all relate to the Medical Assessment carried out by Dr Alec Marshall and upon which the respondent made its decision. The issue in this appeal can therefore be considered within a comparatively narrow compass. 
[3]
The background facts relevant to this appeal may be stated as follows: 
At the time the respondent made its decision the appellant was aged 52 years. 
In May 1996 the appellant suffered a fall down some steps and sustained an injury to her lower back. 
At the time of this injury the appellant had a part-time job as a cleaner and a full-time job as a shop assistant in a bakery. 
The appellant was accepted as being incapacitated from those employments as a consequence of her back injury. 
The appellant had also suffered a left shoulder injury in a fall in 1994. She was able to resume her employment after that fall but began experiencing pain in her left shoulder. 
A number of specialists have examined the appellant since the time of her 1996 accident, but a report which encapsulates the appellant's circumstances is that provided by Dr John Monash, Occupational Medicine Specialist, who examined the appellant in May 1999 and reported to the respondent, inter alia, as follows: 
“I think that the overwhelming reason for work incapacity at the moment is a chronic regional pain problem. This is demonstrated by diffuse tenderness over many areas, extreme disturbance of sleep and painful response to non-noxious stimuli. The severity of this condition is masking the underlying contribution of back and shoulder problems. Mr Talbot mentioned a diagnosis of left frozen shoulder but because of generalised pain responses today I was unable to test for this condition. 
At the moment the physical limitations are not clear as her activities are limited more by pain than demonstrable physical lesions. This pain is real and not psychogenic nor fraudulent. Her incapacity will continue until the chronic pain syndrome has resolved. With aggressive and cohesive treatment she should be able to notice improvement in her symptoms within one to two months. Once the regional pain syndrome abates, any more specific underlying pathology would be easier to identify. ”
In March 2001 the appellant commenced working part-time as an Assistant Tutor for Independent Vocational Services, working 14 hours per week. This employment continued throughout 2001. A report from her employer, dated 12 November 2001, identifies the circumstances of her employment. 
“Doreen is employed for 14 hours maximum per week during the period of the courses. 
Doreen has difficulty in working these hours and has needed time off to rest her tired and sore body. 
Doreen's work is very flexible, enabling her to sit stand etc as she feels the need. As her employer I allow Doreen total control of her daily activities to fit in with how she is physically feeling on any given day. 
She is unable to partake in a lot of activities with the clients due to her physical disabilities. I cover this time with the clients so they don't miss out on the recreational and exercise programme. 
Being an employer working in the disability field enables me to be flexible with Doreen and we are happy to accommodate her difficulties because she has a very positive personality, which encourages our client group. ”
In November 2001 the respondent determined to refer the appellant to the Work Rehabilitation Assessment Procedure and an Occupational Assessment was carried out on 29 November 2001 by Wendy Fisher, Career Services, Greymouth. 
A total of 10 employment types were identified by the Occupational Assessor, including Teacher Aide and Assistant Life Skills Tutor. 
On 14 December 2001 the appellant underwent a Medical Assessment with Dr Alec Marshall, a General Practitioner of Christchurch. 
Dr Marshall determined that the appellant had a physical capability to work 30 hours or more per week as a Teacher Aide and an Assistant Life Skills Tutor, but he rejected the other eight employment types that were under consideration. 
Three days after this assessment the appellant slipped and jarred her left shoulder. 
Before the respondent elected to make any decision regarding the appellant's Capacity for Work it sought medical advice from the appellant's GP, as well as Dr Xiong, Specialist in Rehabilitation Medicine. 
The report from Dr Xiong identified that the appellant suffered from Calcific Tendonitis of the left shoulder which was non-injury related but which had been exacerbated by the fall on 17 December 2001. 
On 20 February 2002 the respondent issued its decision determining that the appellant had attained a Capacity for Work in the two employment types of Teacher Aid and Assistant Life Skills Tutor. 
The appellant sought a review of that decision and for the purposes of that review her then solicitor obtained a report from Dr Barrie Tait, Consultant Physician in Musculoskeletal Medicine. 
A Review Hearing took place on 31 January 2003 at which Dr Tait's report was introduced. 
The appellant gave evidence at that hearing that she was unable to work more than 15 hours per week as an Assistant Life Skills Tutor, the employment that she then currently had. 
In a decision dated 28 February 2003, the Reviewer found that Dr Tait's evidence did not persuade her that Dr Marshall's assessment was flawed and she further found that Dr Marshall had taken full account of the appellant's constant pain. She therefore confirmed the respondent's decision in respect of both employment types. 
For the purposes of the appeal to this Court no further relevant medical evidence has been introduced. 
[4]
As earlier noted, Mr Shepherd's grounds for appeal solely concentrated on the Medical Assessment of Dr Marshall, he contending the following as being its deficiencies which made it flawed. 
(i)
The reasoning provided by Dr Marshall was inadequate and did not satisfy the requirements of Section 100(1)(d). 
(ii)
Dr Marshall failed to sufficiently consider the chronic pain which the appellant suffered and how this would impact on her ability to undertake the two employment types in issue. 
(iii)
The appellant is unable to carry out the functions of the two employment types identified, given her injury related restrictions. 
Dr Marshall's Assessment Report 
[5]
Dr Marshall identified the extensive medical and occupational reports to which he had been referred for the purposes of his assessment. Having noted the appellant's history of injury and treatment, he then noted the appellant's present position as follows: 
“Ms Hay still experiences pain in both her back and her L) shoulder. The lower back pain is an aching burning pain, and it radiates as a strong pain down the L) leg. It is present all the time in the back and the L) leg though intensity does vary. Pain comes and goes in the R) leg as far as the knee. In the L) leg pain is present constantly down to the calf and when it is at its worst it also extends into the L) ankle. Putting her feet up helps. Hot showers help. Sitting, standing, or walking for too long all tend to cause an increase in pain. She finds standing on concrete floors is especially provocative. She still experiences pain in the L) shoulder. It radiates to the L) elbow. Pain is felt deep inside her L) shoulder and is described as a deep pain. She tends to use her R) arm more. She has problems of elevating, twisting or bending the L) arm. Pain can go as far down the arm as reaching the L) fingers and cause soreness and tingling of the L) hand. She now finds that pain radiates to cause soreness of the L) side of the neck, and also now a bit into the R) side of the neck and even into the R) arm at times. She doesn't hoover or mop. She avoids making beds and washing walls. She does manage to cook in the evenings. She has stopped crocheting, knitting, and sewing. She does drive herself around locally for short distances, but does not drive long distances. She managed to get over here today by wearing a back brace and being driven by a friend. It helps on longer trips if they stop regularly. She describes the problems she has encountered as ‘having buggered up her life’. She feels that pain from injuries has contributed to her divorce. She has partially decreased pleasure in activities and hobbies. She indicates that she had 5 jobs all part-time prior to the injury and she feels humiliated to not have them now. She also feels she is hampered due to limited education. ”
Under the heading of “Pain” he noted as follows: 
“Ms Hay experiences constant pain from the lower back down the L) leg to the calf. She also has constant pain in the L) shoulder and down to her L) elbow. When these pains are worse they will radiate further distally in each limb. She also now experiences pain in the neck and to a lesser extent into the R) arm. She also gets some pain in to the R) leg intermittently. ”
[6]
Dr Marshall then carried out a full examination, including the noting of her limitations of movement, both upper and lower body. Under the heading “Discussion and Opinion” he stated as follows: 
“Ms Hay was put off work due to her back injury. She still has lower back pain and has complaints of referred pain, predominantly down the L) leg. There are no objective neurological signs to indicate radiculopathy. CT/MRI have not been performed. She has also developed pain problems in the L) shoulder and L) arm, with problems also spreading to involve the neck and to a lesser extent the R) arm. She relates these problems herself to the accident in 1994, but she did return to full-time work after this accident. Calcium has been noted on X-ray in the rotator cuff consistent with some degeneration. I note that examination findings of volunteered movement today are considerably worse than some of those found at the previous assessments. Strength to resist passive movement is good. The distribution of plain in the L) arm, and neck suggest more of a chronic regional pain syndrome than a definable or remediable problem. It may well even be the case given that pain appears now to be spreading to the R) arms and leg that she is suffering from a global pain syndrome of the whole body. One would generally recommend activity to anybody suffering with a pain syndrome. Maintenance of activity, both physical and psychological, is important to minimise effects. I do however feel it is reasonable to limit how heavy that activity should be. Thus I would not recommend that she return to work in heavy activities or in those that dictate the use of both arms in many and varied positions. Outside of these restrictions she can work. ”
[7]
He then advised that the appellant had the physical capability to work 30 hours or more as a Teacher Aid and Assistant Life Skills Tutor. 
[8]
Dr Marshall concluded his report by noting the appellant's comments made to him, in particular that she was adamant that she could not do 30 hours per week in any work situation whatsoever. She said she could not concentrate for as long as 30 hours as a Life Skills Teacher. 
[9]
After Dr Marshall's report had been received, but before any decision had been made by the respondent, the respondent received back the General Practitioner Questionnaire which noted that the appellant had only been able to work for 15 hours per week for the last 12 months. Dr Eakin concluded by stating: 
“Mrs Hay remains unfit to return to pre-injury status due to a combination of pain syndrome in left shoulder and left leg. She feels that she is unlikely ever to be able to work more than 15 hours per week at selected partial duties. ”
[10]
That Questionnaire was referred to Dr Marshall for comment and he responded by advising that Dr Eakin's report did not cause him to alter the opinion expressed in his report. 
[11]
In addition to the submissions previously noted, made by Mr Shepherd, he further submitted that the finding of a Capacity for Work in the employment type of Teacher Aide could not be sustained, as Dr Marshall had acknowledged that the appellant was unable to engage in heavy lifting and that this was a function and activity which had excluded a number of the other employment types, yet Dr Marshall had approved of the employment type of Teacher Aide, even though one of the identified functions, as noted by the Occupational Assessor, was “heavy lifting, pulling or carrying — may be required to lift children.” 
[12]
Mr Hunt, for the Respondent, acknowledged that in this regard there appeared to be an inconsistency in Dr Marshall's assessment, and I took him to be generally accepting that in those circumstances the assessment of the appellant having a Capacity for Work as a Teacher Aide could not be sustained. 
[13]
However, Mr Hunt further submitted that no such criticism could be had of Dr Marshall's assessment of the appellant as having a Capacity for Work in the employment type of Assistant Life Skills Tutor. He submitted that there was no competing medical evidence which could establish that Dr Marshall's assessment was in any way flawed in that employment type. 
[14]
Mr Hunt further submitted that Dr Marshall had rejected a number of the other employment types by reason of considerations of pain, but that being fully cognizant of the appellant's pain condition, he nevertheless determined that it was not a consideration which would prevent her from working 30 hours or more per week as an Assistant Life Skills Tutor. 
Decision 
[15]
Mr Shepherd, for the Appellant, has raised several grounds in support of his contention that Dr Marshall's Medical Assessment cannot be sustained. 
[16]
The first ground submitted is that the Assessment did not comply with the requirements of Section 100(1)(d) of the Act. That Section states that the Medical Assessment must include — 
“(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. ”
Counsel submitted that Dr Marshall's Assessment was devoid of reasoning and that he simply stated that the appellant had a Capacity for Work in the two employment types stated without reasons. He referred to the decision of this Court in Bidois (318/01). He noted this decision had been approved by this Court in a number of subsequent decisions, some of which he referred to. 
[17]
As was noted by Mr Hunt, the decision of Bidois has been put into proper context in a number of subsequent decisions. He referred to the decisions of Kidd (53/04) and Osborne (353/02) to name but two. 
[18]
The decision of Bidois is one of my own, as was the later decision of Osborne. In the Osborne decision I endeavoured to put the Bidois decision in its proper context. It was a case where the Court was faced with considering the respective merits of two competing medical reports. The competing report to that of the Medical Assessor was found to have full reasons given for the opinions expressed, whereas that of the Medical Assessor did not. In that context the Court found that the Medical Assessor's report was inadequate and could not be relied on in the face of cogent reasoning to the contrary. 
[19]
In the present case, whilst there is a competing opinion expressed by Dr Barrie Tait, his report is similar in its layout to that of Dr Marshall. Dr Tait notes the appellant's history, the fact that she is only working 15 hours per week at present and that she maintains that is the maximum she can work because of pain. He thereupon gives his opinion, based on his interview with Mrs Hay and his examination, that — “Mrs Hay is not fit to work 30/35 hours per week.” 
[20]
That opinion, I find, gives no clearer indication for the reasons in coming to it than that provided by Dr Marshall. Dr Marshall has extensively recorded the appellant's history as well as noting her current pain problems and how that restricts her in her activities. 
[21]
The requirements of Section 100(1)(d) simply require the Assessor's opinion of the insured's Capacity for Work for each employment type. It does not state, in so many words, that the Assessor must give reasons for his opinion. It is for this reason that in the decision of Osborne (supra) I noted the situation as follows: 
“For the avoidance of doubt I should indicate that the decision of Bidois should not be taken as establishing a procedural requirement which, if not met, renders the assessment invalid. It is an evidentiary requirement only. Where a medical assessment is brought into question it is up to the respondent to consider whether or not the assessment required further clarification, as a matter of evidence before any review or appeal. ”
[22]
I endorse the comments made in Osborne and note that the giving of reasons is an evidentiary requirement which, where there is a “contest” between medical specialists on the issue of Work Capacity, then of course, as a matter of evidence, the reasoning of the respective experts will assist to determine which is to be preferred. 
[23]
This evidentiary requirement would apply where the Ramsay principle would otherwise come into play, as any competing opinion with reasons would need to be clear and cogent and identify that the medical assessment upon which the respondent was relying was flawed. 
[24]
In the present Medical Assessment, I find that Dr Marshall has fully canvassed the appellant's pain condition and how that affects her. He carried out a detailed examination and noted the limitations that pain may have had on her ability to move, and I find that he has fully factored in the appellant's pain condition when coming to his determination. 
[25]
Finding as I do, I also find that there is an absence of reasoning on the part of Dr Tait, save for him acknowledging that the appellant does have chronic pain of musculoskeletal origin. His opinion, which is contrary to that of Dr Marshall, I find is only that, a contrary opinion, and does not identify any cogent reasons why Dr Marshall's opinion is thereby flawed. 
[26]
The findings I have made above effectively cover the three grounds of appeal advanced by Counsel for the Appellant. However, I do note that Counsel also submitted that the appellant herself had given clear evidence that she could not work more than the 15 hours as currently, and that this should be a weighty factor in her favour. 
[27]
Whilst the Court accepts that this is the appellant's belief, sincerely held, it is the case that the Assessment Procedure provided for under the Act, demands an independent assessment and for an objective view to be formed, particularly in the case of the Medical Assessment. Dr Marshall was well aware of the appellant's opinion and he noted it, but nevertheless formed the view that she did have a Capacity for Work and it is the case that the objective assessment of the duly appointed specialised assessor must hold sway in those circumstances. 
[28]
Finally, I address the question of whether the determination of Capacity for Work in the employment type of Teacher Aide can stand in view of the fact that it does involve heavy lifting as a function and activity, and that this is an activity which the appellant has identified as being required to avoid. 
[29]
As earlier noted, I took the concession made by Mr Hunt to in fact be an acceptance of the fact that this employment type could not be sustained in view of that inconsistency when compared with other employment types that have been rejected. 
[30]
I agree that on the evidence the assessment of the appellant as having the physical capabilities of carrying out all the work functions and activities of Teacher Aide cannot be sustained, and therefore the respondent's determination of the appellant having attained a Capacity for Work in the employment type of Teacher Aide is quashed. 
[31]
Insofar as the remaining employment type of Assistant Life Skills Tutor is concerned, I find that the assessments carried out have correctly identified the appellant as having a Capacity for Work in that employment type. The Act only requires that a Capacity for Work be found in one employment type. Accordingly, I find that the respondent's determination that the appellant had a Capacity for Work in the employment type of Assistant Life Skills Tutor was correct and its decision is confirmed. 
[32]
Accordingly, the Review Decision is modified as I have indicated, but that the consequence of that modification is nevertheless that the respondent's decision is confirmed and this appeal is dismissed. 

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