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Accident Compensation Cases

Hall v Accident Compensation Corporation (DC, 12/06/07)

Judgment Text

Judge P F Barber
The Issue 
I am asked to determine the correctness of ACC's 14 July 2005 decision to suspend (from 14 October 2005) the appellant's weekly compensation following a 27 June 2005 Vocational Assessment by Dr Bruce Gollop on the basis that he had then achieved Vocational Independence. 
This appeal was put to me on the confined issue of whether that medical assessment was reasonable. The appellant no longer challenges the occupational assessments. 
ACC says that the medical assessment is cogent and reasonable and shows that the appellant has Vocational Independence for nine job options and that the appellant has not produced any compelling evidence to contradict that. 
Essentially, the appellant says that his left knee injury, to which these proceedings relate, gives him intense pain and that was particularly so as at date of medical assessment 27 June 2005 and was not properly and fairly taken into account by Dr Gollop. 
I observe that the appellant gave evidence before me about the nature and extent of the pain in his left knee at material times. I find that evidence very credible so that it is disturbing that the normal Vocational Independence process has somehow overridden that the appellant has an intense pain condition which, thankfully, seems to be easing a little and/or able to be better managed by him. 
It seems that the initial injury to the appellant's left knee happened in July 2001 when he overstepped into a depression at his place of employment and strained that knee. On 12 February 2002 he sustained a further injury to that left knee due to an accident at his workplace. He was a foreman at a quarry and was involved in both the driving of large excavators and their maintenance. 
The appellant was initially treated by his GP and then referred to Mr Andrew Herbert, an orthopaedic surgeon, for assessment. 
Mr Herbert referred the appellant for an MRI scan. That revealed a small knee joint effusion, degenerative medial compartment, tear posterior third of the medial meniscus, fraying of the middle third of the lateral meniscus, cartilage degeneration lateral facet of the patells, and near complete tear of the ACL. 
In April 2002 the appellant underwent an examination under anaesthesia and arthroscopic debridement. The appellant subsequently had an ACL reconstruction performed by Mr Herbert on 24 July 2002. 
In January 2003, six months post operation, Mr Herbert reported: 
“The knee continues to improve and gain strength. Robert has been able to mow his lawns albeit with some difficulty and is now considering returning to work driving a bus. I have given him my full support for this. Robert does need to continue with his strengthening programme but my feeling at this stage is that he should be able to manage full time employment but probably not at a quarry where his injury occurred. Ultimately however the expectation is for his knee to reach a point where Robert should be able to undertake heavier activities. ”
On 14 February 2003 the appellant's GP, Dr Hogan, certified him fit to resume light duties for more than 20 hours per week. 
During 2003 the appellant undertook part-time bus driving and proceeded to study information technology, by correspondence, to be an IT technician. 
In May 2004 the appellant was placed by WINZ into a sandblasting position. The appellant was unable to continue with this due to increasing pain in his knee and made a request to ACC for assistance on 5 August 2004. 
On 29 July 2004 the appellant was assessed by Dr Grant Thompson, Musculoskeletal Physician. He diagnosed the appellant as having a complex left knee injury resulting in pain and moderate instability. He recommended lighter duties, simple analgesia, continued daily quadriceps strengthening and eventual orthopaedic review. 
Various procedures took place and the appellant participated in a work ready programme in November 2004. He completed a successful work trial as a Computer Technician at Kauri Computer Company in February 2005 achieving 32 hours work in the fourth week of the programme. He continued to work in this role on a part-time voluntary basis. 
With all rehabilitation complete the appellant was advised on 9 March 2005 that he was then ready to be assessed for Vocational Independence. 
On 5 April 2005, Dr Main forwarded the GP Questionnaire to ACC. Dr Main provided a supplementary letter to address the information requested in the questionnaire. He had requested an orthopaedic review by Mr Barry Tietjen and advised that the appellant was due to see him on 12 April 2005. He further stated: 
“I feel that the possibilities for return to the workforce are extremely good, provided he can find a job, which does not involve continual heavy use of his legs. Really sedentary/office type work would be most suitable. ”
Julie Chiaroni from Alpha Consultants Ltd completed the Vocational Independence Occupational Assessment and prepared a report on 20 April 2005. She identified ten suitable work types based on the appellant's work experience, transferable skills, training and general education. 
The referral for the Vocational Independence Medical Assessment was delayed while ACC awaited a report from Mr Tietjen. On 12 April 2005 Mr Tietjen reported: 
“In my opinion the stability of his knee is adequate following surgery and his major disability relates to uncontrolled pain. If successful pain management can be achieved then I would expect his function to be greatly improved. ”
The appellant was referred to Dr Bruce Gollop who on 27 June 2005 completed the Vocational Independence Assessment and opined that the appellant had a Vocational Independence in nine of the ten job options. 
The appellant contended the medical assessment was flawed and relied on the following medical evidence, namely, reports from Mr Barry Tietjen dated 12 April 2005, from Dr Grant Thompson dated 24 August 2005, and from Dr John Hancock dated 25 August 2005. The appellant was then also challenging the occupational assessment. 
The Review Decision 
Reviewer J R Orange issued a clear and reasoned written decision on 23 September 2005 finding that there is no injury-related medical reason to prevent the appellant from working for 35 hours or more per week in the said nine job options which are: 
Computer Systems Technician 
Computer Support Technician 
Ticket seller 
Accounts clerk 
Telephone switchboard operator 
Teaching associate professional 
Computer operator 
Stock clerk 
Transport clerk 
In my view, the Reviewer assessed the position comprehensively and applied the correct law. I set out portions of the Reviewer's conclusions as follows: 
“Similarly, the medical assessor found Mr Hall to have the physical ability to undertake nine of those jobs. Unless I have before me some evidence that either of the assessments was flawed in any way, I am bound by them. I cannot have regard to Mr Halls' opinion that he does not have the capacity to perform those jobs. 
The general thrust of Mr Hall's submissions was that Dr Gollop had failed to take proper account of the constant pain from which he suffers. He explained at some length the way in which his ongoing pain restricts him in his day-to-day activities. He submitted that Dr Gollop had not considered the opinion of Mr Tietjen in making his assessment. 
I agree with Ms Fitzgerald that the decision of the High Court in Ramsay (AP412/14/02) is relevant to this case. …  
In this case, Dr Gollop is the duly appointed assessor. He has the qualifications the legislation requires. I am bound to rely on his opinion unless there is evidence that his opinion is flawed in some respect. That evidence has to be clear and cogent. 
The evidence of Mr Tietjen, Dr Hancock and Dr Thompson is insufficient. As far as I am aware none of them has the qualifications the legislation requires. Furthermore, none of them has offered an opinion as to Mr Hall's capacity to undertake the jobs identified in Dr Gollop's assessment report. Essentially, their reports are concerned with Mr Hall's pain and options for its management. 
I am satisfied that Dr Gollop was well aware of the extent of Mr Hall's pain. His assessment of the nine jobs suitable for Mr Hall took account of the need to minimise any aggravation of his pain. I have not been provided with any clear and cogent evidence that Dr Gollop's opinion is flawed. Accordingly, I must rely on it. ”
Notice of Appeal Filed out of Time 
The appellant did not file a Notice of Appeal against the review decision of 23 September 2005 until 10 March 2006, which was some five months out of time. In terms of s 151 of the 2001 Act, the appeal needed to have been filed within 28 days from receipt by the appellant of the review decision. This Court has a discretion under s 151(3)(c) to extend the time. 
The leading case, in relation to the exercise of a discretion for such late applications, is the High Court decision McDougall v ACC [1983] NZACR 677 which makes clear that there are four factors to be considered, namely, the length of delay, the reasons for the delay, the strengths and merits of the case, and any prejudice to ACC if a late application is allowed. 
Mr Tui pointed out that the appellant has not provided any reasons for his delay in appealing the review decision but concedes there does not appear to be any prejudice to ACC because the appeal should be determined on the medical evidence available at the time of the review. Mr Tui notes that the appellant has not obtained any further medical evidence for this appeal. He then went on to make submissions on the substantive merits of the appeal which I shall deal with. 
It does not seem appropriate to extend time for appeal because no clear application for such extension has been made. However, due to my views below on the substantive issue, I do not decline an extension of time to appeal at this stage. 
The Relevant Legislation 
There is no dispute that the relevant provisions relating to the assessment of a claimant's Vocational Independence under the 2001 Act are contained at ss 107-113 of that Act. As indicated, this appeal now is confined to the fairness of the medical assessment. A determination that a claimant has a Vocational Independence is to be regarded, inter alia, as a determination that the claimant is no longer incapacitated (s 111). Pursuant to ss 107(3), the purpose of a Vocational Independence 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” to either maintain or obtain employment or, alternatively, to regain or acquire Vocational Independence. 
It is settled law (Ramsey AP 412/14/02 per Hansen J) that the medical assessor's opinion must stand unless clear and cogent evidence shows it to be wrong. As Judge Hole subsequently put it in Carter (137/04): 
“It is not the function of this Court, when hearing an appeal, to determine whether or not a particular appellant is suitable for any proposed job option. That is the function of the occupational assessor and medical assessor. Unless there is clear and cogent evidence which indicates that the way either the occupational assessor or medical assessor reached his or her conclusion is flawed, those conclusions must stand. ”
Summary of the Appellant's Evidence to Me 
Mr Hall says he has been made to return to work too soon and is still in much intense pain. He is working as a computer technician but finds it very difficult to concentrate on such work due to his pain from his knee injury. He is now off all medication and seems to rely on the products of a natural health shop in Dargaville. He said that his prescribed painkillers had him so “in the clouds” that he could not go to work. He said that, at material times, his pain was so severe that it caused depression, and anti-depressant medication was prescribed, but his system could not cope with that and his personality was adversely affected. I understood that he is able to work 20 hours per week as a computer technician due to the kindness and tolerance of his employer and because Workbridge subsidise about 30% of his wages. He says that he was required to resume work too soon under WINZ, having lost ACC weekly compensation, as he had and still has chronic regional pain syndrome flowing from the injury to his knee. As he puts, it the nerves in his left knee still tell his brain that the knee is injured. 
Mr Hall acknowledges that he has received much help from ACC but emphasises that intense pain flowing from the covered injury has never healed. 
Mr Hall said that he has become a computer technician because he had always been interested in electronics, knew he needed a job comprising light duties, and a friend of his owned a computer shop and encouraged him to take a course on computer technician by correspondence. Mr Hall was very successful in that course. He says that some days he is an unproductive worker due to pain and his employer is very understanding. He emphasised that he is now completely “off” all drugs but still suffers much pain but feels he is gradually healing. He says he needs to be careful not to overtax his knee. He only works 20 hours per week and is paid for that number of hours only. He says he is wary of this whole case process and would like it concluded and, of course, is concerned that at some future time his knee will deteriorate into osteoarthritis. 
The appellant submits that ACC have not taken into consideration the 12 April 2005 assessment of Dr Tietjen and have not provided the appellant with appropriate rehabilitation. He puts it that Dr Hancock's 25 August 2005 assessment and Dr Thompson's second assessment of 24 August 2005 support Dr Tietjen's assessment of chronic pain and that there is a need to work towards diminishing that in order to further the appellant's rehabilitation. He emphasised that he has some instability in his left knee which has caused him to fall frequently and makes work and day to day activities difficult. 
Mr Tui puts it that there has been a proper medical assessment (on 27 June 2005) by Dr Gollop who had received all relevant medical and vocational reports including that of Mr Tietjen dated 12 April 2005. Of course, Dr Gollop had also interviewed and examined the appellant. Against that background Dr Gollop had identified the appellant's restrictions as follows: 
“He can be considered permanently unfit for heavy manual work or for those occupations where he is in a standing position or is required to walk as the predominant feature of the job. He is also not fit for any occupation where he has to repetitively carry 10 kg or more. He is fit for light supervisory type work, where he is able to vary his body position between a predominantly sitting position, with some ability to move around. ”
As indicated, Dr Gollop has opined that the appellant had Vocational Independence to undertake the said nine job options. 
Mr Tui submits that Dr Gollop's opinion is comprehensive, fair and reasonable and that his assessment and report meet the requirements of the legislation so that ACC must rely on that from the duly appointed assessor in determining the appellant's Vocational Independence. 
Mr Tui emphasised that the Vocational Independence Medical Assessment was delayed to ensure Dr Gollop was aware of Mr Tietjen's opinion and Dr Gollop was provided with a copy of Mr Tietjen's 12 April 2005 report and has since been provided a copy of the report sent to the appellant's GP, Dr Main, which had not been made available to ACC at the time Dr Gollop assessed the applicant for Vocational Independence. That report differed from that supplied to the Corporation in that it included the specific intervention for a referral to be made to a pain specialist. In his 20 August 2005 response Dr Gollop wrote: 
“There are no new clinical symptoms or findings, I endorse the recommendations of my VIMA report of 27 June 2005. ”
Mr Tui puts it that Dr Gollop's findings were not dissimilar to those of Mr Tietjen. Dr Gollop reported that the knee was stable; although the appellant continued to have pain. Dr Gollop took the appellant's ongoing pain into account when outlining his restrictions and his ability to perform each of the job options. Mr Tui also submits that the reports from Dr Hancock (a pain specialist) and Dr Thompson (musculoskeletal physician) do not undermine Dr Gollop's assessment in any way. He notes that Dr Hancock comments on the appellant's Vocational Independence and that Dr Thompson confirms that the appellant has chronic pain to the left knee and that surgery would be “unwise”, and states “there are a number of occupations that Mr Hall would be unsafe in” and continues further “ … Rob has a mechanically unstable knee which would restrict his vocational placement possibilities, and severe pain which will also affect him vocationally”. It is true, as Mr Tui emphasises, that Dr Thompson does not identify the occupations which are unsafe for the appellant nor whether any of them include the nine job options which Dr Gollop has assessed the appellant as having a Vocational Independence to undertake. 
Mr Tui submits that it is significant that the nine job options are of a predominantly light/sedentary nature and so would not place any significant stress on the knee. It is true that the nine job options are of that type but if the claimant experiences intense pain, then even such job options are unreal and unreasonable. 
The situation of the appellant regarding his chronic pain is concerning and is a not unusual situation from my experience in adjudicating on ACC appeals in this Court. There seems to be no dispute that the appellant's chronic pain flows from his covered knee injury and is a symptom which has simply never healed. If it is correct that the pain condition precludes the appellant from being able to work for more than 20 hours per week, then there is something baffling about a Vocational Independence (Occupational and Medical) process which concludes that at least for nine types of jobs the appellant is not incapacitated. In this case the appellant does not seek indefinite reinstatement of the compensation which was terminated by ACC as from 14 October 2005 because his theme is that the suspension was premature and that, in the meantime, mainly by his own proactiveness, he has managed to stabilise and manage his pain. He seemed to be putting it to me that the weekly compensation should have been terminated in about October 2006. 
I accept that De Gollop's medical assessment must stand unless clear and cogent evidence shows it to be wrong. The proper process seems to have been followed so that the outcome seems binding. However, because I find the appellant an honest witness, there is clear and cogent evidence that he suffers (and did at material times) too great pain to be regarded as no longer incapacitated and to be vocationally independent. That view seems to be supported by the medical evidence adduced for the appellant. 
It is difficult to know what the outcome should be in this particular case. At present, due to the evidence of the appellant, I am not satisfied as to the correctness of ACC's decision in suspending weekly compensation for the appellant as at 14 October 2005. However, to override that decision I should ascertain whether more specific medical evidence is available to contradict that of Dr Gollop and from a medical specialist qualified and authorised in terms of the medical assessment procedure for Vocational Independence. That involves the passage of more time and the incurring of more cost. Perhaps, a sensible settlement would be for ACC to agree to resume and continue compensation for at least a further six month period from 14 October 2005. 
I shall allow the parties one month to consider my above reasoning and then have the Registrar arrange a conference of the parties with me by telephone to ascertain whether a consent outcome can be achieved, or whether I need to make a final order as to outcome and costs. 

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