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Accident Compensation Cases

Jones v Accident Compensation Corporation (DC, 26/08/08)

Judgment Text

Judge J Cadenhead
At issue is a decision by the Accident Compensation Corporation (“the Corporation”) dated 17 January 2005 determining that the appellant has a vocational independence in seven job options, namely: 
Ticket Seller 
Costing Clerk 
Record and Filing Clerk 
Data Entry Operator 
Survey Interviewer 
Telephone and Switchboard Operator 
The appellant contends that his rehabilitation has not been completed; in particular a work trial had not been arranged for the appellant. The appellant submits that medically he is incapable of working 35 hours or more in the seven job options and that he requires a graduated return to work as indicated by Mr Gavin Farr, orthopaedic surgeon. 
On the other hand it is submitted that the Corporation provided sufficient rehabilitation for the appellant to assist with his readiness, physically, to return to work. The appellant received an activity-based programme and physiotherapy and that his rehabilitation is complete. 
I substantially set out the background of facts provided by the respondent, because on a reading of the file it seems accurate and reliable. 
The appellant lodged a claim for cover in April 1992 for a back injury sustained on 13 April 1992. The appellant was then a postal assistant aged 26 years. According to the C1 Advice of Injury form, the appellant suffered his injury whilst “lifting bags and strain my back”
The appellant received entitlements, including lump sum awards and weekly compensation. Vocational rehabilitation was provided to the appellant over the subsequent years. 
In May 1997 the appellant was assessed by a multi-disciplinary team of specialists, including an orthopaedic surgeon (Mr Ross Nicholson) and rheumatologist (Dr Michael Corkill). On the basis of the results of the assessments, the Corporation wrote to Mr G R C Howie, spinal surgeon (at the request of the appellant for a second opinion) seeking his comment on the Corporation's proposal to provide the following rehabilitation programme for the appellant: 
Pain management, education and exercise programme; 
Work hardening programme; 
Career counselling and job placement assistance; and 
Counselling with a psychologist. 
In 1998 the Corporation referred the appellant to AIT Rehabilitation Centre and Career Dynamics to receive the said rehabilitation interventions. 
Following the rehabilitation, the appellant was assessed to ascertain his capacity for work. The medical assessment was undertaken by Dr Evan Dryson, occupational medical specialist, on 11 December 1998. Dr Dryson opined that the appellant had a capacity for work in two job options. 
A primary decision was issued by the Corporation on 6 January 1999 determining that the appellant had a capacity for work. 
The appellant applied for a review from the Corporation's decision. A review hearing was conducted on 19 May 1999. A decision was issued by the review officer on 15 June 1999 dismissing the application. 
There followed an appeal and a decision by the District Court on 7 December 1999 dismissing the same. 
In November/December 2000, the appellant applied for backdated weekly compensation. The Corporation investigated the same, seeking medical records from the appellant's then general practitioner, Dr Lockwood. The Corporation also sought, and obtained, medical records from Mr Michael Barnes, orthopaedic surgeon, who had been treating the appellant. Mr Barnes had operated on the appellant's back on 22 June 2000. 
In response to a request by the Corporation, Mr Barnes responded on 1 March 2001 advising, inter alia: 
“I then reviewed him [the appellant] at the request of his GP in April 2000 because he had developed left sided sciatica over the preceding three weeks. This time frame would be consistent with a further injury to his back in February to a disc with progression to a disc prolapse. 
The appearances at surgery, namely a partially sequestrated L5/S1 disc prolapse tenting the S1 nerve root were entirely consistent with a recent disc prolapse. ”
On 9 March 2001 the Corporation issued a decision determining that the injury sustained in February 2000 was a new injury and that as the appellant was not an earner immediately prior to February 2000 (he was then receiving a sickness benefit) the appellant was not entitled to weekly compensation. 
The appellant applied for a review from the Corporation's decision. A further report from Mr Barnes, dated 11 April 2001, was obtained in support of the review. 
A review hearing was conducted on 8 June 2001. The reviewer issued a decision on 25 June 2001 quashing the Corporation's decision, determining that the injury in February 2000 was an exacerbation of the 1992 injury and not a new injury. As such, the reviewer directed the Corporation to reassess the appellant's capacity for work on the basis that there had been a deterioration of the appellant's capacity for work from February 2000. 
The Corporation subsequently arranged for an occupational and medical assessment to be undertaken. 
Marea Brown, from Taskmaster Training Ltd, undertook the occupational assessment on 31 July 2001. 
Dr Siobhan Gavaghan, occupational medical specialist, undertook the medical assessment. Dr Gavaghan prepared reports on 13 September and 27 September 2001. Dr Gavaghan opined that the symptoms from February 2000 were such that the appellant would not then have had a capacity for work but that by the time of the medical assessment in September 2001, the appellant had a capacity for work in six job options. 
The Corporation issued a primary decision on 28 September 2001 determining that the appellant was entitled to reinstatement of his weekly compensation from 20 February 2000 but that on the basis of Dr Gavaghan's assessment the appellant then had a capacity for work; as such his weekly compensation would be ceased in three months, on 27 December 2001. 
An application for review form was completed on 19 October 2001 on behalf of the appellant. The review was brought from the Corporation's decision of 28 September 2001. The appellant obtained a report from Dr John Hancock, dated 21 November 2001, in support of the review. The Corporation obtained a response from Dr Gavaghan dated 20 December 2001. 
A review hearing was conducted on 17 January 2002. A further report from Dr Hancock, dated 23 January 2002, was subsequently filed. 
The reviewer issued a decision on 8 February 2002, quashing the Corporation's decision. The reviewer determined, as a matter of law, that the Corporation could not as part of its reassessment of the appellant's capacity for work, determine both an entitlement to weekly compensation and a cessation arising from the same assessment. The reviewer determined that once the Corporation had determined that there was no longer a capacity for work, entitlements were required to be reinstated and the appellant's rehabilitation recommenced. 
The appellant was subsequently referred for an Initial Occupational Assessment (“IOA”) and an Initial Medical Assessment (“IMA”). Later the same year, the appellant received assistance with an activity-based programme and a work preparation programme. 
The appellant was referred for a further IOA and IMA in mid to late 2003. The IOA was undertaken by Leigh Cowden from Taskmaster on 1 August 2003. Ms Cowden noted that the appellant had been working as a film extra and had undertaken acting classes. 
Dr Chris Walls undertook the IMA on 15 September 2003. 
The appellant's IRP was updated in October 2003 and there followed a referral for an activity-based programme as well as vocational assistance from Alpha Consultants. The activity based programme included funding for membership at a gym/pool. 
There was a further referral for a work preparation programme with Focus on Jobs in September 2004 and computer training assistance in December 2004. 
The appellant's IRP was updated and modified from time to time to reflect the changes and progress made with the appellant's rehabilitation. 
In January 2005 the appellant was considered ready to be assessed for his vocational independence. 
The Vocational Independence Occupational Assessment (“VIOA”) was undertaken on 17 January 2005 by Verity Masson from Focus on Jobs. Ms Masson assessed the appellant as being suited to undertake work in 16 job options. 
The Vocational Independence Medical Assessment (“VIMA”) was undertaken by Dr David Scott on 26 January 2005. Dr Scott opined that the appellant had a vocational independence in eight job options, being the seven listed in paragraph 1.1 hereof as well as that of “actor”
The Corporation issued a decision on 17 February 2005 determining that the appellant had a vocational independence in the said seven job options. 
An application for review form was completed on 24 February 2005. Reports from Dr Hancock and Mr Farr, dated 19 March 2005 and 29 March 2005 respectively, were obtained in support of the review. 
The Conduct of the Review Hearing 
Section 140 of the legislation provides: 
Conduct of review: general principles 
The reviewer may conduct the review in any manner he or she thinks fit, but he or she must— 
comply with section 138; and 
comply with any other relevant provision of this Act and any regulations made under this Act; and 
comply with the principles of natural justice; and 
exercise due diligence in decision-making; and 
adopt an investigative approach with a view to conducting the review in an informal, timely, and practical manner. ”
Section 145 provides that the review hearing substance should be conducted as follows: 
“145 Review decisions: substance 
In making a decision on the review, the reviewer must— 
put aside the Corporation's decision and look at the matter afresh on the basis of the information provided at the review; and 
put aside the policy and procedure followed by the Corporation and decide the matter only on the basis of its substantive merits under this Act. ”
It should be noted that a review officer should adopt an investigative approach put aside the Corporation's decision and look at the matter afresh on the basis of the information provided at the review. 
In Accident Compensation v Ambros [2008] 1 NZLR 340Has Litigation History which is not known to be negative[Blue]  Glazebrook J, delivering the decision of the Court, said at paragraph [64]: 
An important factor that favours the Supreme Court of Canada's approach applying in that context is the essentially inquisitorial role of the Corporation, both when an initial claim is made and in the review function (see Medical Law in New Zealand, para [24.12]). The inquisitorial approach should generally mean that, to the extent this is practical, all aspects of the claim (including causation) have been investigated by the Corporation before matters reach the courts. If that occurs, the situation in Cochrane v Accident Compensation Corporation [2005] NZAR 193Has Litigation History which is not known to be negative[Blue]  would be avoided. In that case, the medical evidence at the review stages had not been directed to the legal test of causation. As a consequence, a rehearing was ordered in the District Court. That may unfortunately also be the result in this case (see para [113] below). In our view, it is in keeping with the non-adversarial nature of the claim and review process that the Corporation should investigate all possible aspects of a claim, at least in a rudimentary fashion and as far as practicable. It would thus be in a position, once the matter comes before a court, to lead evidence on all points that were investigated, whether strictly obliged to or not. ”
The Review Hearing 
The review hearing dated 10 May 2005 dismissed review application. The review hearing commenced on 11 April 2005 and the review hearing the appellant provided further reports from Dr Hancock and Mr Farr. The reviewer properly referred the comments from these additional reports to the medical assessor Dr Scott. 
Mr Farr had prepared a report for the appellant's general practitioner on 29 March 2005. Mr Farr stated, inter alia, at page 2: 
“He has appealed against earlier decisions by ACC and has a letter from the Ombudsman. He makes the point that in Dr Wall's report there was a recommendation for a work hardening process, building up the hours of work over a period of time as he has not worked consistently since 1992. I would agree with this concept. This man does have a chronic pain problem which is not likely to go away. 
My recommendations are: 
He should return again to see Mr Michael Barnes, orthopaedic surgeon, who dealt with his left sided sciatica successfully. He may require a further MRI and may require further surgery including fusion. 
He has work capacity now and if he can find suitable employment, should return to work. I would agree with the concept that as he has not worked since 1992 he may well need to increase his hours of work over a period of time and is unlikely to succeed if he is cleared to work for 35 hours a week. I would suggest therefore a return to work in graded fashion as a work hardening process. 
I do not think that any other therapy is likely to be helpful for him. In my opinion, he will need to live with his low back discomfort but his present state of fitness can be improved, particularly in relation to his poor abdominal tone. He has not found attending a gym successful and I would recommend that he walks on a regular basis and attends a pool, perhaps three times a week, and specifically at increasing abdominal tone. ”
The appellant also relied on a report from Dr Hancock, pain specialist, dated 19 March 2005. Dr Hancock opined that the appellant was unable to undertake the said job options as there was constant sitting which he believed would aggravate the appellant's condition. 
This procedure of referring back to the medical assessor was part of the investigative function of the reviewer and part of the obligation at review to consider the matter afresh, as has been outlined. Dr Scott's final comments were received on 29 April 2005. 
Dr Scott had an opportunity to consider the reports from Mr Farr and Dr Hancock. In his response of 18 April 2005, Dr Scott stated: 
“I note that Mr Farr (in recommendation 2) states that Craig has work capacity now and should return to work, but suggests a graded return. 
I also note that Dr Hancock did not note any signs of discomfort during his interview, or when Craig was walking or moving on the examination couch, apart from stiffeness when his neck and lumbar spine was examined. Dr Hancock does not appear to think that Craig could do any of the suggested jobs because of the prolonged sitting involved. 
In my opinion Craig is still capable of 35 hours or more in the job types previously mentioned for the following reasons: 
In my report of 31/1/05 Craig's self-reported ability to sit (and drive) was in the range of 60-90 minutes. After this he has to stretch and move about. 
I observed that Craig was able to sit for the entire time of my interview with him and moved easily on and off the examination couch. 
Mr Farr reports that Craig told him he could sit for 120 minutes and stand for 30 minutes. 
Dr Hancock notes that Craig would experience increased pain if he sat or drove for a longer period than an hour. 
Craig is therefore able to sit for at least 60 minutes, then takes a break, which is what most people in a seated occupation do anyway. 
Most importantly, while all the clerical jobs listed specify frequent to constant sitting or standing, they also have moderate flexibility of movement which means that Craig could get up and stretch or walk when he needed to, just as he no doubt does at home now. ”
It should be noted that the medical assessor, in my view, does not consider or give reasons why he considers that the appellant could work for 35 hours or more without a graduated return to work as suggested by Mr Farr. 
The reviewer said; 
“However merely holding a different view from that of the professional assessor is not sufficient. The assessor must be shown to have gone beyond the margins of professional discretion and to have come to an unrealistic or plainly unreasonable conclusion. This approach gained approval in Ramsay 122/2002
Dr Scott has considered Mr Farr and Dr Hancock's reports. Dr Scott pointed out that Mr Farr also stated that Mr Jones had a capacity for work, on a graded return basis. 
Dr Scott also noted that, during the assessment, Mr Jones was able to sit for the entire time of his interview. He confirmed Mr Jones' self reporting ability to sit and drive in the range of 60-90 minutes. Although Dr Hancock noted that Mr Jones would experience increased pain if he sat or drove for longer than an hour, Dr Scott believed that, like most people in a seated occupation do, Mr Jones would be able to take a break after that time. 
When considering Dr Scott's report, I do not believe that the reports of either Mr Farr of Dr Hancock have identified any flaw in this report, such that his report cannot be safely relied on Dr Scott has more than addressed Dr Hancock's reservations about Mr Jones' ability to work 35 hours or more in the identified job options. Mr Farr did not dispute Dr Scott's findings …  
Therefore, for the above reasons, I find that Mr Jones does have vocational independence. ”
In my view, the reviewer was correct to investigate the matter further by referring the additional medical materials to Dr Scott and considering the issue afresh. 
Legislation and Legal Principles 
The relevant provisions relating to the assessment of a claimant's vocational independence under the Injury Prevention, Rehabilitation, and Compensation Act 2001 (“the 2001 Act”) are contained at ss 107 to 113 of that 2001 Act. 
Pursuant to s 107(1) the Corporation may determine a claimant's vocational independence where that claimant is in receipt of weekly compensation. Section 110(3) further provides that an assessment must not be undertaken: 
“until the claimant has completed any vocational rehabilitation that the Corporation was liable to provide under his or her individual rehabilitation plan. ”
The term “Vocational Independence” is defined under s 6 as meaning: 
“Vocational Independence, in relation to a claimant, means the claimant's capacity, as determined under section 107, to engage in work- 
for which he or she is suited by reason of experience, education, or training, or any combination of those things; and 
for 35 hours or more a week. ”
“108. Assessment of claimant's vocational independence 
An assessment of a claimant's vocational independence must consist of— 
an occupational assessment under clause 25 of Schedule I; and 
a medical assessment under clause 28 of Schedule I. 
The purpose of an occupational assessment is to— 
consider the progress and outcomes of vocational rehabilitation carried out under the claimant's individual rehabilitation plan; and 
consider whether the types of work (whether available or not) identified in the claimant's individual rehabilitation plan are still suitable for the claimant because they match the skills that the claimant has gained through education, training, or experience. 
The purpose of a medical assessment is to provide an opinion for the Corporation as to whether, having regard to the claimant's personal injury, the claimant has the capacity to undertake any type of work identified in the occupational assessment and reflected in the claimant's individual rehabilitation plan. ”
Pursuant to s 111, a determination that a claimant has a vocational independence is to be regarded, inter alia, as a determination that that claimant is no longer incapacitated. 
Section 112 provides that a determination of vocational independence under s 107 results in a claimant losing his or her entitlement to weekly compensation three months after the date upon which that claimant is notified of the determination. 
In respect to taking away a benefit the remarks of Mallon J in Ellwood v ACC (CIV 2005-485-536 High Court Wellington, 18 December 2006) are pertinent and in that case Her Honour said: 
In contrast if the test required the ACC/the Reviewer/the District Court ‘to be satisfied that there is no right to entitlements’ then that test would not be met where the evidence was in balance or unclear. They could not be satisfied because the evidence would have left the position unclear. That said, the ACC must make reasonable decisions. In a situation where the evidence is unclear or in balance, is it reasonable to suspend entitlements? In many cases it may not be. Before entitlements are suspended at ACC's initiative (or that suspension is upheld by a reviewer or the District Court) ACC should take steps to clarify the position one way or the other. The claimant is not present at the first stage so the obligation must be on ACC at this stage to obtain sufficient evidence. Mr Beck's proposed test of asking whether there is a sufficient basis on which entitlements should be suspended (in effect, terminated) is a reasonable one. If there is an insufficient basis then the test of ‘is not satisfied’ is not met. If there is a sufficient basis then ACC can be ‘not satisfied’ of the right to entitlements. As the reviewer and the District Court apply the same test the same approach should be taken at each stage. 
I therefore consider that s 116 combined with the requirement in s 62 on ACC to make reasonable decisions requires ACC to have a sufficient basis before terminating benefits. If the position is uncertain then there is not a sufficient basis. The ‘not satisfied’ test is not met in these circumstances. 
The approach must be that it is upon the respondent to show on a balance of probabilities that it had suspended the statutory entitlement as it was not satisfied, on the basis of the information in its possession, that the appellant was entitled to continue to receive the statutory entitlement. ”
In my view, having regard to the above comments by analogy the legal burden of proving vocational independence such that sections 111 and 112 of the Act are triggered rests upon the Corporation. 
The Status of the Medical Assessor 
Clauses 27, 28 and 29 of Schedule 1 provide: 
“27. Medical assessor 
A medical assessment must be undertaken by a medical practitioner who is described in subclause (2) or subclause (3). 
A medical practitioner who provides general medical services must also— 
have an interest, and proven work experience, in disability management in the workplace or in occupational rehabilitation; and 
have at least 5 years' experience in general practice; and 
meet at least 1 of the following criteria: 
be a Fellow of the Royal New Zealand College of General Practitioners or hold an equivalent qualification: 
be undertaking training towards becoming a Fellow of the Royal New Zealand College of General Practitioners or holding an equivalent qualification: 
have undertaken relevant advanced training. 
A person who does not provide general medical services must also— 
have an interest, and proven work experience, in disability management in the workplace or in occupational rehabilitation; and 
be a member of a recognised college. 
28 Conduct of medical assessment 
A medical assessor undertaking a medical assessment as part of an assessment of a claimant's vocational independence under section 108 must take into account— 
information provided to the assessor by the Corporation; and 
any individual rehabilitation plan for the claimant; and 
any of the following medical reports provided to the assessor: 
medical reports requested by the Corporation before the individual rehabilitation plan was prepared: 
medical reports received during the claimant's rehabilitation; and 
the report of the occupational assessor under clause 26; and 
the medical assessor's clinical examination of the claimant; and 
any other information or comments that the claimant requests the medical assessor to take into account and that the medical assessor decides are relevant. 
The Corporation must provide to a medical assessor all information the Corporation has that is relevant to a medical assessment. 
29 Report on medical assessment 
The medical assessor must prepare and provide to the Corporation a report on the medical assessment specifying— 
relevant details about the claimant, including details of the claimant's injury; and 
relevant details about the clinical examination of the claimant undertaken by the assessor, including the methods used and the assessor's findings from the examination; and 
the results of any additional assessments of the claimant's condition; and 
the assessor's opinion of the claimant's vocational independence in relation to each of the types of work identified in the occupational assessor's report; and 
any comments made by the claimant to the assessor relating to the claimant's injury and vocational independence in relation to each of the types of work identified in the occupational assessor's report. 
The report must also identify any conditions that— 
prevent the claimant from having vocational independence; and 
are not related to the claimant's injury. 
The Corporation must provide a copy of the report to the claimant. ”
In Ramsay [Christchurch Registry, AP 412/14/02, 12 December 2002] the High Court held that the assessments of physicians qualified pursuant to the legislation, will be preferred and acted upon by the Court unless clear and cogent evidence to the contrary by a duly qualified physician can identify a flaw in that assessment. Hansen J held: 
… Once the respondent determines to require an insured to undergo the process determining capacity for work, it seems to me, 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. The assessment can only be carried out by someone who is entitled to, pursuant to s 98. 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 opinion of another non-qualified person under s 98, who in terms of the legislation, cannot make such an assessment …  
In my view, s 89 does not leave discretion with the insurer to determine capacity after receiving the report from the medical assessor. What it provides is that an insurer can decide to require an insured to be assessed to determine the capacity for work. Once that decision is exercised by the insurer the provisions of the following sections come into play, and all the parties are bound by them. 
I concur in Mr Havlac's submission [for the respondent] that something more is needed to set aside a determination that an insured has a capacity for work other than an opinion from another medical professional not qualified under s 98. 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. ”
In short, an evidential onus is conferred upon the medical assessor provided that no flaws are apparent in his assessment. 
However, before that evidential inference is reached it is necessary that the medical assessor provides clear and cogent reasons for the decision made. This would include reasons for rejecting the views of orthopaedic surgeons and specialist medical practitioners, whose materials provide part of the materials that a medical assessor considers before reaching his decision. The views of those medical experts are of prime importance, as they are the specialists in those areas upon, which they comment. The medical assessors must take into account their views in commenting finally on the issue of vocational independence. If the medical assessor disagrees with the views of the experts in their field clear and cogent reasons should be given in the medical assessment provided. By illustration I refer to: 
Newewale (AI 259/02) in reference to pain where I said: 
“In this case the appellant submits she was not provided with sufficient reasons dealing with the issue of her pain in the medical report of the assessor, and further, that the medical assessor mistakenly noted down her assent as to her ability to do the specified jobs. It is noted that section 100 provides that the medical report must specify relevant details of the insured, including details of the injury. The report must set out the assessor's findings from the examination and the assessor's opinion of the insured's capacity to work for each of the types of employment specified in the occupational assessor's report. 
These statutory requirements mirror the procedural fairness need to give adequate and intelligible reasons (Judicial Review of Administrative Action, 5th Edition, De Smith, Wolf and Jowell, para 9-049). The reasons should show that the decision maker has successfully come to grips with main contentions advanced by the parties. The reasons should be sufficiently detailed on the main issues to make it clear to the losing party why the decision was reached and to enable the reasons to be appropriately reviewed. ”
In Park (AI 552/02) Judge Hole on an application for leave to appeal, reflected on the pragmatic approach to this question as follows: 
“Comments made by the learned Judge in Inwood (43/02) and Bidois (318/01) have been contrasted with what is claimed is a different view espoused by His Honour Judge Barber in Kidd (53/04). Upon analysis, the appellant is claiming that Judge Barber thinks that detailed reasons are not required for the medical assessor's opinion whereas Judge Beattie requires them. I disagree with that analysis. While the words are different, each Judge agrees that when giving an opinion on job suitability, information sufficient to justify that opinion is necessary and that information should relate to factors identified as characteristics of that job option by the occupational assessor. The assessment should be sufficient to inform both a claimant and the Corporation how the medical assessor reached his conclusion: however, detailed reasons may not be necessary. ”
The capacity to work procedure is a discrete process that is governed by the above statutory provisions. The position of a medical assessor is of importance in this statutory framework and he is required to consider all the essential prerequisites prescribed by the above sections: Ramsay v Accident Insurance Corporation (High Court, Dunedin; AP 412/14/02; 12 December 2002; John Hansen J)
I appreciate that a medical assessor is not a judicial officer, however, in view of the evidential presumption created by Ramsay great care must be taken to see that rational and coherent reasons are given by the medical assessor in reaching a conclusion that would take away a person's entitlement to weekly compensation by a finding of vocational incapacity. In this respect this reasoning follows by analogy from the remarks of Justice Mallon in the first part of her decision in Ellwood (supra). 

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