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Accident Compensation Cases

Aladeli v Accident Compensation Corporation (DC, 03/04/13)

Judgment Text

Roderick Joyce QC Judge
This was an application for leave to appeal on a question of law the 5 December 2011 judgment of Judge Beattie the effect of which was to hold correct the earlier, 1 December 2009, determination of the Corporation that Mr Aladeli had, at that time, vocational independence. 
Mr Schmidt who had appeared as counsel for Mr Aladeli on the hearing of the appeal had given notice on 19 December 2011 of this application citing the following grounds: 
His Honour did not consider counsel's submission that the fact of a fresh injury required a fresh s 103 assessment and that requirement is mandatory. 
His Honour did not take into account Mr Aladeli's sworn evidence given at review, which asserted factual matters that (were) at odds with Dr Nicholson's assessment. Counsel's position is that sworn testimonial [sic] evidence that is not rebutted cannot be overturned by expert evidence to the contrary. 
In the event further prosecution of the application came to be in the hands of Mr Aladeli himself who then submitted (by email) that his application was based on the facts that: 
I had a small new injury (which was covered by ACC) which caused the incapacity which prevented me from continuing to work by re-aggravating my pain condition and making it worse than before. 
I gave evidence at review that Dr Nicholson did not appreciate how bad my pain was, that it was more widespread than before, and that I was back where I started. That evidence was not challenged at the hearing and should not have been rejected by the Judge, ”
Mr Aladeli has since simply resubmitted the statement of evidence he had given at review, which I have read. 
Corporation's response 
In responding to the Corporation Ms Becroft argued: 
That Mr Aladeli had not raised any arguable question of law. 
The issue before this Court had been vocational independence. 
The Court had determined on the then available evidence that there was no indication that Mr Aladeli was not capable of working full time in the identified job types. 
The Judge had said at [26] to [28] of his judgment: 
From the perspective of the correctness or otherwise of the respondent's decision of vocational independence, I find that those psychological issues are not such as to identify the appellant is incapable of carrying out the work tasks of the work types identified. I consider Dr Nicholson to be in the best place to give an opinion on the matter, and he has identified that the appellant's situation is largely the same as it was when he assessed him in 2007. 
I find that the medical evidence from Mr Don and Dr Nicholson identifies that the appellant is capable of working full time in suitable job types which do not involve heavy physical activity, and even Dr Black acknowledges that the work types so identified fall into that category. 
Accordingly I find on balance that the medical evidence does identify that the appellant is physically capable of engaging in the work types identified on a full time basis, and therefore the decision that the appellant had retained vocational independence was the correct one at the time it was made. ”
Mr Aladeli had not (in what in fact was simply his statement of evidence) raised any question of law and appeared simply to indicate that he disagreed with the vocational independence medical assessment, he proposing, presumably, that the opinion of Dr Black who had provided an opinion on his behalf should have been preferred over that of Dr Nicholson. 
The Court's analysis of the factual/medical evidence could only give rise to a question of law if, on whatever count, there was no justification for the conclusion reached on the evidence; and in fact- 
There was an abundance of evidence to support the Court's findings and it was entitled to prefer and rely on the evidence it counted most significant. 
No response from Mr Aladeli 
Mr Aladeli was given the opportunity to respond to the submissions but did not avail himself of that. 
I see from Judge Beattie's judgment that: 
Mr Aladeli had suffered a lumbar disc injury in March 2005 for which he got cover and received weekly compensation until May 2007 when he was assessed as vocationally independent. 
On 5 May 2009 he suffered another injury to his spine which, it was originally accepted, was incapacitating but, as was subsequently identified, was a “continuation of the medical condition” suffered in the 2005 accident, 
The Corporation had set out upon a further vocational independence process to determine whether Mr Aladeli's health might have materially deteriorated in consequence of the compounding factor of the 2009 injury. 
On appeal it had been argued for Mr Aladeli that the VIMA of Dr Nicholson (supporting fitness to work in 6 work types) should be put to one side in favour of the acceptance, as the more persuasive, of the opinion provided by Dr Black, another occupational medical specialist. 
Prior to reaching its 1 December 2009 determination that Mr Aladeli still retained vocational independence, the Corporation had engaged the services of Mr Don, orthopaedic and spinal surgeon. So on one side of the case sat the opinions of him and Dr Nicholson and on the other that of Dr Black. 
Following the 2007 declaration of vocational independence Mr Aladeli had returned to work as a structural engineer and it was in fact a work site accident in May 2009 that aggravated the original injury, 
Judge Beattie's judgment reviewed the substance of the advice of Mr Don and the fresh assessment of Dr Nicholson. 
As the Judge noted, Dr Black had come into the picture in May 2010. Judge Beattie made detailed reference to what he had found and his consequential opinion, which came down to the view that at the time he saw Mr Aladeli he did not consider him able to work full time because of a pain syndrome which had taken hold following his back injuries, 
The Judge also noted that Dr Black's views had been referred to Dr Nicholson for comment and he set the substance of that comment out, such including this: 
“I am of the opinion that physically Mr (Aladeli) is able to perform the abovementioned jobs. I believe that there are certain overlaying psychological factors which are currently inhibiting him from returning to work, This is also stated by Dr Black, Dr Black has concluded that this is the main reason he is not fit for full time work. 
However, I note that Mr (Aladeli) has been able to return to full time work as a civil engineer from 2008-2009, He has demonstrated that he could work full time during this time despite having a history of chronic lower back pain. Any psychological issues therefore did not preclude him from performing the physical and mental tasks required for being a civil engineer in 2008-2009. I do not believe that Mr (Aladeli) psychological state or his pain level has changed significantly since this time. Therefore I can only conclude that he is again fit to perform the abovementioned job which are largely sedentary or light physical work. ”
To give meaning and context to these remarks, I note that Dr Black had earlier said: 
“In my opinion … Ahnad is suffering from moderately severe chronic pain with documented features of extended psychological impact. In my opinion, this disability would unfortunately preclude him from achieving vocational independence in any of these jobs. Therefore I do not consider that, on a psychological basis he does have the capacity to perform the mental activities required in each of these jobs. This incapacity is persistent predominantly because of his injuries. ”
In the “decision” section of his judgment Judge Beattie noted that: 
It was the assessment of Dr Nicholson that Mr Aladeli was physically capable of carrying out the physical elements of the identified work types and able to work full time despite overlaying psychological factors that had been present over time. 
In the Judge's view (obviously based on a consideration of the evidence before discussed by him) the psychological issues were not such as to show that Mr Aladeli was incapable of carrying out the work tasks of the work types identified and, given his previous knowledge of the case, Dr Nicholson had been in the best place to give an opinion, thus: 
Accordingly, (the Judge found) on balance that the medical evidence (did) identify that the appellant (was) physically capable of engaging in the work types identified on a full-time basis, and therefore the decision that the appellant had retained vocational independence was the correct one at the time it was made. ”
Mr Aladeli's evidence at review 
I acknowledge that in dealing with the appeal the Judge did not dwell at all on Mr Aladeli's evidence at review, evidence that had been included in the bundle of documents. 
In that statement Mr Aladeli had, amongst references to a number of historical matters, spoken particularly of his situation post the 2009 accident - this in terms, if I may summarise, that: 
He had gone back on light duties but had suffered problems with fatigue and concentration related to pain before, in August 2009, stopping work completely because of his back. 
He contested his physical ability to do the jobs of construction manager and stock clerk because of movement problems; that of transport engineer because it would involve walking or climbing over difficult and uneven terrain; and that of construction estimator because site visits would require climbing activities. 
He had accepted that he would probably be able to manage the other sedentary jobs of cost clerk and production clerk on a part time basis, given plenty of opportunity to vary his posture and no need to sit for more than half an hour at a time. 
He then spoke of problems with concentration and level of mental functioning which, he contended, had noticeably declined since the May 2009 accident, 
He asserted that Dr Nicholson had not discussed issues of fatigue and concentration with him whereas Dr Black had. 
It will, I think, be obvious from the foregoing that to the extent that Mr Aladeli refers to the medical evidence he is really looking to the High Court for a rehearing concerning the weight and worth of the competing medical opinions, but of course there is no right of general appeal to the High Court. 
As to the Judge's focus having been on the medical evidence, thus without particular mention being made of what Mr Aladeli said at review, that is surely understandable in vocational independence context. 
For in this, as in so many cases of its kind, the issue was the ability, from a medical point of view, to sustain the job options in question. 
There will on occasion be cases where self-reporting may be of significance but, after reading Mr Aladeli's evidence, I cannot see how that could necessarily have been so here. 
Thus, in the end and as the Judge effectively recognised, the outcome of the appeal was surely one turning on whose evidence was the more persuasive — that of Dr Nicholson or that of Dr Black (both experts in the field). 
And, for the reasons he explained, Judge Beattie preferred (as the more persuasive) the evidence of Dr Nicholson. 
Thus no question of law is in any way apparent. 
The application is dismissed. 

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