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Accident Compensation Cases

Elliott v Accident Compensation Corporation (DC, 21/10/11)

Judgment Text

Judge D A Ongley
This is an application for leave to appeal from a judgment of His Honour Judge M J Beattie delivered on 8 March 2011, Elliott [2011] NZACC 74. The subject of the appeal was a decision by the respondent that the appellant was vocationally independent. 
The appellant was injured in July 1995 when he was working as a self-employed milk vendor. He continued to work after his injury, despite a problem of low back pain caused by the injury. He remained self-employed and engaged in a war games business, a landscaping business and a massage parlour until 2004. He received weekly compensation from October 2006. 
An initial medical assessment (IMA) in 2006 found him suited to light work. The report recommended referral to a clinical psychologist. In 2007 a clinical psychologist's report addressed pain management for the appellant. 
A further IMA in June 2007 found that the appellant had a normal work capacity in sedentary or light occupations. A Functional Capacity Evaluation in August 2008 recommended that he avoid heavy lifting and had work with ability to change his postures and his work duration to manage his pain levels. 
The final vocational and medical assessments were done in October and December 2008. He was found vocationally suited to nine work types and medically suited to five of those work types. The Corporation issued its vocational independence decision accordingly. On review, the Reviewer found that the assessments were not flawed and confirmed the Corporation's decision. 
Dr W E D Turner did the medical assessment. He reported that the appellant had chronic mechanical low back pain with typical bouts of crescendoing symptoms either spontaneously or in relation to lifting and carrying or bending and twisting movements. 
The appellant obtained a medical report from Dr Neville Berry who gave reasons why the appellant could not sustain work in the relevant work types, for example in relation to a management role: 
“Most of the time Mr Elliott is physically likely to be able to sustain such a role but what is lacking is both the predictability of his symptoms and therefore physical ability, and more importantly, his depression/anxiety. The depression anxiety is impairing his ability to socialise and he is also low in motivation and both of these are critical attributes for being a general manager - and particularly to find employment as a general manager which he has never done before. ”
Dr Berry's recommendation was: 
“It is my opinion that Mr Elliott should be given time for his depression to respond to the medication and any other medical management that may be necessary before expecting him to return to paid employment. It is also my opinion that he should be returned to suitable employment via gradually increasing hours and exposure to tasks involved. ”
Judge Beattie considered submissions concerning the evidence of depression and its effect on the appellant's ability to work. Ms France for the appellant submitted that the rehabilitation was incomplete in view of Dr Berry's opinion that there was a need for a graduated process of reintroduction to work. Mr Hack for the respondent submitted that the last individual rehabilitation plan (IRP) did not specify any further intervention before vocational independence assessment, so that the vocational rehabilitation process was complete as required by the Act. 
The appellant also introduced an assessment from a careers consultant, Catherine Lambert. The Judge considered that assessment and found that it addressed a question of difficulty in obtaining work, but not the vocational independence questions of suitability and medical fitness. 
In his decision, Judge Beattie found one of the work types to be inappropriate, on grounds not relevant to this application. After considering the evidence, he said: 
The issue of depression was not a matter which was referred to by Dr Hartshorn, Dr Antoniadis or Dr Turner, and from that perspective, it seems to be the case that it is something that has arisen since the respondent's decision determining vocational independence was made. It may well be that the fact of the appellant losing his weekly compensation entitlement and the situation in which he was placed, has brought this about. The hard fact of the matter is, however, that the issue of depression is not a condition which is associated with the covered injury, and whilst it is a fact of life, it is not a factor which is required to be taken into account when considering whether the appellant has attained vocational independence. 
In view of the fact that Dr Berry's competing assessment is almost entirely focusing on that issue of depression, I find that it cannot be a factor which can establish that the assessment of Dr Turner was flawed. ”
On this application for leave to appeal, Ms France submits that the Judge gave primacy to the occupational and medical assessment, and did not give the same primacy to Mr Elliott's claim that his vocational rehabilitation is incomplete. 
In her submissions, Ms France summarised much of the evidence on the appeal, and referred to the appellant's case. She submitted: 
that Dr Turner did not sufficiently consider the appellant's gastric problems; 
that there is a mismatch between the appellant's skills and the recommended work types; 
that there should have been a work trial to test sustainability, as recommended by Dr Antoniadis in an assessment in July 2007; 
that ACC wrongly accepted an unqualified GP opinion that there were no non-injury conditions inhibiting return to work; 
that the findings did not satisfy the requirement for ability to engage in work for 35 hours or more a week. 
In the judgment, Judge Beattie specifically referred to the 35 hour requirement. There was no indication of any argument that the assessments were not based on 35 hours per week. The submission was made in relation to Dr Berrry's opinion of sustainability compared with Dr Turner's opinion on the same point. That is a question of fact. No error of law has been identified on that point. 
Mr Hack submits that the question is whether the evidence showed that the appellant had vocational independence, and that it is a factual question. The appellant has not identified any question of law on which the Judge may have erred. He submitted that Judge Beattie did not give primacy to assessments but carefully weighed the evidence before him. 
Leave can only be given for appeal on a question of law. The appellant has not identified any question of law that may have led to error in the judgment. The submissions relate entirely to questions of fact and preponderance of evidence. An error of fact can raise a question of law in the limited circumstances described in Ramsay v Wellington District Court CA 47/04, 4 August 2005
The appellant's first ground of review was that the District Court had found in its first decision that the appellant did not have the capacity to work for 30 hours and having so found it was not open to the Court to determine otherwise in its second decision. While the ground might be categorised as irrationality it is in essence that the facts found were such that no body citing judicially and correctly understanding the law could have reached the determination under appeal. If that were established there would be an error of law of the type identified by Lord Radcliffe in Edwards v Bairstow [1956] AC 14, 36 requiring Has Cases Citing which are not known to be negative[Green] intervention of the Court. …  ”
It is readily apparent that there is no error of law based on an irrational decision. The Judge was entitled to reach the conclusions that he did on the evidence before him, and the judgment does not indicate that he failed to consider a essential point. 
I find that the application for leave does not identify a question of law capable of serious argument in the High Court. The application for leave is therefore refused. 

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