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Accident Compensation Cases

Vivash v Accident Compensation Corporation (DC, 28/10/14)

Judgment Text

Decision 
A.
The appeal is dismissed. The decisions of the Corporation and review officer are confirmed. 
B.
If there are any cost issues, and these cannot be resolved by the parties, any application is to be filed within 20 working days of the date of this decision, any reply 10 days thereafter, and a final reply, if any, 5 working days after that. 
REASONS FOR DECISION 
Judge J A Smith
Introduction 
[1]
Did Mr Vivash achieve vocational independence as at the date of the Corporation decision on 29 June 2012? 
Background 
[2]
Mr Vivash had a number of injuries to his back in 1982, 1985, 2002 and 28 July 2012 (after the date of the Corporation decision on vocational independence). 
[3]
He was a boat builder at the time of the accident in 1982. There was some assistance from the Corporation, but he continued in that industry until 1989 when he underwent spinal surgery. He subsequently recovered and returned to work. 
[4]
A request for weekly compensation was made after the 2002 injury; a report from Dr Furneaux and MRI noted: 
(a)
a disc bulge at L5/S1; 
(b)
an annular tear at L3/4; 
(c)
there appeared to be early degenerative changes associated with the previous disc prolapsed (presumably the 1982 injury) and the subsequent surgery in 1989. 
[5]
There was a suggestion that he needed to identify a job that did not require heavy lifting or bending, and recommended conservative treatment. 
[6]
An initial occupational assessment in December 2002 identified several alternative job options. An initial medical assessment completed by Dr Dryson in June 2003 concluded a number of sedentary job options would be suitable. At that time Mr Vivash had set up a furniture-making business and a work trial around this was set up. A subsequent Initial Medical Assessment (“IMA”) in November 2003, by Dr Kanji concluded that light work was appropriate for the appellant. At this stage the appellant's focus remained on self-employed business. 
[7]
Another IMA was undertaken in October 2004, which identified sales representative, technical representative, property inspector, property maintenance coordinator, insurance assessor and estimator as being suitable jobs. 
[8]
There appears to have been a deterioration in late 2004, with L5/S1 post-discectomy as well as multiple annular tears from L1 to L5, identified by Mr Howie, the specialist. There appears to have been periodic work during 2004 and early 2005, but by May 2005 there was a recurrence of the back pain following a further accident for a short period, with the appellant returning to work. A further recurrence in mid-2006 meant a further review. 
[9]
This pattern appears to have continued through 2006 to 2008, with a further initial occupational assessment in February 2007, reference to the Auckland Regional Pain Service in 2008. A further IMA was undertaken by Mr Kelman in May 2009 also identifying a number of suitable roles and a further occupational assessment in December 2009 took the same step. Mr Robertson identified a foraminal stenosis causing nerve root compression and funding for surgery was approved and undertaken in January 2010. 
[10]
There is a reference to rehabilitation assistance and psychological assistance, and in September 2010 Dr Turner undertook an IMA and again identified suitable job options, and on 21 December 2010 Dr Turner advised that the appellant was capable of undertaking work and concluded: 
“I have reviewed my Initial Medical Assessment and I certainly did conclude that Stuart was fit for sedentary to light physical demand occupations and in particular was better suited to those roles where he was able to change posture from sitting/standing and vice versa throughout the work cycle. I concluded that he would not be able to undertake a driving task as this would likely exacerbate his mechanical low back pains. I also determined that he was unfit for any medium to heavy physical demand task where there is lifting and carrying at this level and also repetitive bending and twisting movements. ”
[11]
Dr Turner goes on to identify two particular tasks which he believed fitted those categories, being inquiry clerk, and alarm, security and surveillance monitor. 
[12]
In March 2011 a further WorkReady programme was funded, together with reference for pain management. In April 2011 an added job option was electrical appliance technician and Dr Turner, on 11 April, confirmed his medical assessment that the role of a medical appliance technician would be suitable. 
[13]
There was a reference for computer training in June 2011 and a work trial in July 2011. Initially it was for 20 hours per week and then went up to 30 hours per week. 
[14]
As can be seen, there was extensive involvement of the Corporation throughout this period, and there had been a consistency in approach in all of the many initial occupational medical assessments that Mr Vivash was able to undertake work. However, Mr McDonald for Mr Vivash pointed out that bowel and urinary problems had been identified from 2008. Mr Waddell, for the Auckland District Health Board made the comment in a report dated 28 March 2008: 
“There was no history of asthma and he has normal bowel function. When his low back pain increases he has reduced urinary stream. ”
[15]
Mr Robertson, an orthopaedic and spinal surgeon, on 17 October 2008 noted: 
“He gets some post-voiding sensation that he has to continue passing urine, but I did not think that was true neurogenic-sphincter dysfunction. Coughing can exacerbate back pain. ACC have covered him for various issues over the years. ”
[16]
In a neuro-physiological report of Dr Walker dated 9 January 2012 there is the comment, which I can only assume is self-reported: 
“He does appear to have some symptoms related to bladder and bowel. He sometimes leaks urine after he has passed urine. He has, however, had no other episodes of incontinence or retention. He suffered some degree of urgency with his bowels. He also has Peyronie's disease. ”
Vocational Independence Medical Assessment 
[17]
It is pointed out there is no dispute with the occupational assessment; the issue is with the vocational independence medical assessment (“VIMA”) prepared by Dr Dryson on 13 April 2012. The first major criticism is that it does not take into account the worsening of his pain condition, and in particular that it ignores the physical limitations on him caused by his bowel and bladder dysfunction. 
[18]
I am unclear whether or not the bladder and bowel function alleged is related to the back injuries, or is an unrelated issue. This is not clear from the various reports I have just referred to, but there could be a possible connection. I note that Dr Walker, in her January 2012 report1
| X |Footnote: 1
Report to Mr G Finch, 09 January 2012, at 
notes: 
“Sensory examination revealed painful dysaesthesiae on the soles of his feet. He has diminishes [sic] temperature sensation and pin prick sensation on the dorsum of the left foot. There is some distal sensory light touch impairment in the dorsum of the left foot. The soles of both feet were hyperaesthetic to stimulation. Tests of co-ordination appeared to be normal. Blood pressure was 150/70. ”
[19]
In her recommendation: 
“3.
The symptoms of long-standing sensory radicular symptoms are usually due to irritation of the nerve roots due to proximal damage from compression or ischaemia. This type of irritable nerve symptom can be sometimes improved [sic] with the use of an anticonvulsant agent, such as low dose Epilim or Dilantin. ”
[20]
The VIMA report was prepared by Dr Dryson on 13 April 2012. In particular the report notes the neurological report of 9 January 2012 by Dr Walker. Dr Dryson does discuss the paraesthesia issues in general terms in relation to Mr Vivash's feet, and his difficulty with maintaining single postures. I cannot find any specific discussion of bowel or urinary problems, although clearly Dr Dryson has seen, in the Urologists report, comments on bowel and urinary issues. He comments in the end that he considers that Stuart has had adequate interventions in respect of pain management and now has appropriate tools to manage pain. He discusses his earlier work trials and notes: 
“Stuart will not be able to undertake work of greater than sedentary to light physical demand. He will not be able to undertake work which involves frequent or constant bending. He will not be able to undertake work which involves frequent or constant standing, but would be able to undertake work where he is able to move around freely. ”
[21]
Dr Dryson goes through 21 various occupations. In that report Dr Dryson identified seven potential job types: 
(a)
inquiry clerk; 
(b)
purchasing officer; 
(c)
survey interviewer; 
(d)
appliance service person; 
(e)
product assembler; 
(f)
sales representative — building and plumbing supplies; and 
(g)
sales assistant — general hardware 
[22]
Dr Dryson reported that Mr Vivash agreed with four of these work types, being appliance service person, product assembler, and sales assistant - general hardware and sales representative building and plumbing supplies. 
[23]
Two factual errors were raised by Mr Vivash on 9 May, and a corrected VIMA was provided on 15 May, but with the same original date. These errors did not relate to the job types or the comments made in respect of them. On 14 May a further back strain was reported, but neither the report of Mr Faraj (17 September 2012 or Mr Barnes (12 June 2012) specifically mentioned a further event on that date. On 22 June Dr Dryson commented on this as an aggravation of the already existing back condition and considered that it did not affect the outcome of the VIMA. 
[24]
Prior to the review hearing, issues about a potential right elbow injury were also raised. This was addressed by an additional report of 13 August 2012. Dr Dryson confirmed his view that any right elbow problem would not prevent the appellant from working 30 or more hours per week. A psychiatric assessment was also requested, which occurred on 18 December 2012. The conclusion reached was that there was no persistent pain disorder or any clinically diagnosable mental condition. Cover for such claim was denied on 9 January 2013. 
The legal position 
[25]
The starting point for issues of vocational independence must turn on its definition in the Act, as amended on 1 July 2010. 
vocational independence, in relation to a claimant, means the claimant's capacity, as determined under section 107, to engage in work — 
(a)
for which he or she is suited by reason of experience, education, or training, or any combination of those things; and 
(b)
for 30 hours or more per week. ”
[26]
The word capacity is not defined in the Act but it is important to note that the definition does not refer to the personal injury the subject of the claim. Weekly compensation turns on questions of incapacity, and importantly incapacity is determined under Sections 103 or 105 of the Act and: 
incapacity, - 
(a)
(b)
includes absence from employment in order to get treatment for personal injury covered by this Act, if the treatment 
(i)
is necessary for the injury; and 
(ii)
is treatment of a type that the claimant is entitled to under Part 1 or Schedule 1 ”
[27]
Importantly, neither of these definitions exclude from the definition of incapacity, or the definition of vocational independence, non-ACC injuries. The question of personal injury is a separate requirement for any entitlement. Thus in cases such as Ngaruhe v ARCIC2
| X |Footnote: 2
Ngaruhe v ARCIC, DC Auckland, DCA 163/94, 27 July 1995 
, the District Court noted that incapacity in that case was indivisible where there was a pre-existing degenerative condition, and in ARC v Pavarno3
| X |Footnote: 3
Accident Rehabilitation and Compensation Insurance Corporation v Pavarno [1998] NZACC 76 (21 April 1998) 
the Court accepted the appellant had cover for the exacerbation of a pre-existing condition. Section 107 contains the primary power in subsection (1): 
“107
Corporation to determine vocational independence 
(1)
The Corporation may determine the vocational independence of — 
(a)
a claimant who is receiving weekly compensation; 
(b)
a claimant who may have an entitlement to weekly compensation. ”
The Process 
[28]
Section 107(2) of the Act states: 
“107
Corporation to determine vocational independence 
 
(2)
The Corporation determines a claimant's vocational independence by requiring the claimant to participate in an assessment carried out 
(a)
for the purpose in subsection (3); and 
(b)
in accordance with sections 108 to 110 and clauses 24 to 29 of Schedule 1; ”
[29]
Subsection (3) provides: 
“(3)
The purpose of the assessment is to ensure that comprehensive vocational rehabilitation, as identified in a claimant's individual rehabilitation plan, has been completed and that it has focussed on the claimant's needs, and addressed any injury-related barriers, to enable the claimant to — 
(a)
to maintain or obtain employment; or 
(b)
to regain or acquire vocational independence ”
[30]
Section 108 then provides: 
“108
Assessment of claimant's vocational independence 
(1)
An assessment of the claimant's vocational independence must consist of —an occupational assessment under clause 25 of Schedule 1; 
(a)
an occupational assessment under clause 25 of Schedule 1; and 
(b)
a medical assessment under clause 28 of Schedule 1. 
(2)
The purpose of the occupational assessment is to — 
(a)
consider the progress and outcomes of vocational rehabilitation carried out under the claimant's individual rehabilitation plan; and 
(b)
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. 
(3)
The purpose of the 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. ”
[31]
It is important to note that it is this requirement, under Section 108, subsection (3), that specifically brings into focus the claimant's personal injury. Section 109 deals with when claimant's vocational independence is to be assessed and gives general discretion to determine this at reasonable intervals, and requires this to be undertaken where reasonable grounds for believing that the vocational independence or capacity to work may have deteriorated (due to the injuries that were assessed in the previous vocational independence or capacity for work assessment). Section 110 deals with the notice to the claimant, and in particular subsection (3) states: 
“110
Notice to claimant in relation to assessment of vocational independence 
 
(3)
The Corporation must not require the claimant to participate in an assessment — 
(a)
unless the claimant is likely to achieve vocational independence; and 
(b)
until the claimant has completed any vocational rehabilitation that the Corporation is liable to provide under his or her individual rehabilitation plan. ”
[32]
One must also turn to Schedule 1, Clauses 24 - 29, which deals with questions of vocational rehabilitation. Clauses 24 - 26 deal with occupational assessment and key points are that: 
[a]
Clause 24 - The assessor must be appointed by the Corporation and be considered by the Corporation to have the appropriate qualifications and experience; 
[b]
Clause 25 - The conduct of the occupational assessor can take into account all information the Corporation has which is relevant; 
[c]
Clause 26 - Provides for the report, and importantly, Clause 26(1)(h) provides: 
“(h)
in relation to each type of work, the requirements of that type of work, including any environmental modifications that the assessor identifies as necessary to enable a claimant to function safely in that type of work ”
[d]
Clause 27 - Provides for a medical assessor. Again, the qualifications for that assessor are set out in Clause 27(1) - (3), who must be: 
“(2)
A medical practitioner …  
(a)
with an interest, and proven work experience, in disability management in the workplace or occupational rehabilitation; and 
(b)
have at least 5 years' experience in general practice; and 
(c)
meet at least 1 of the following criteria: 
(i)
be a Fellow of the Royal New Zealand College of General Practitioners or hold an equivalent qualification; 
(ii)
be undertaking training towards becoming a Fellow of the Royal New Zealand College of General Practitioners or holding an equivalent qualification; 
(iii)
have undertaken relevant advanced training. ”
Subsection (3) requires: 
“(3)
A person who does provide general medical services must also — 
(a)
have an interest, and proven work experience, in disability management in the workplace or occupational rehabilitation; and 
(b)
be a member of a recognised college. ”
[e]
Clause 28 — Conduct of a medical assessment in this clause. The information required is broad, including: 
“(f)
any other information or comments that the claimant requests the medical assessor to take into account and that the medical assessor decides are relevant. 
(2)
The Corporation must provide to a medical assessor all information the Corporation has that is relevant to a medical assessment. ”
[f]
Clause 29 - specifically deals with the report and requires a number of issues, including importantly under subsection (2): 
“(2)
The report must also identify any conditions that — 
(a)
prevent the claimant from having vocational independence; and 
(b)
are not related to the claimant's injury. ”
[my emphasis
[33]
These provisions have been a rich source of dispute between claimants and the Corporation, and various aspects of these matters have been litigated. 
Case Law 
[34]
It is perhaps appropriate to start the analysis of these provisions with the commentary from the High Court in Murray v Accident Compensation Corporation4
| X |Footnote: 4
[2013] NZHC 2967, Kos J 
where the Court noted at [69]: 
“[69]
The outcomes under the present Act are unquestionably anomalous. It was not suggested otherwise before me. No Judge could frame common law duties in so inconsistent and erratic a fashion. Nor could insurers achieve such outcomes in an informed market. But cover under the Act is the product of careful and crystalline drafting by legislators. The meaning and effect of the statutory words in issue is quite clear. ”
[35]
The Supreme Court in McGrath v Accident Compensation Corporation5
| X |Footnote: 5
[2011] NZSC 77, [2011] 3 NZLR 733 
has also concluded in respect of Section 110(3) that the decision under Section 110(3) was amenable to judicial review. At [30] it noted: 
“[30]
Section 110(3) sets a threshold for the exercise of the Corporation's power to require vocational independence assessment for claimant receiving weekly compensation. Compliance with the threshold set by the legislation can be compelled through recourse to the supervisory jurisdiction of the Court, as has been accepted by the Corporation since the judgment of the High Court. ”
[36]
Later at [31]: 
“[31]
… The responsibility of the Court on judicial review is to ensure that the legislative condition is fulfilled. Since the condition turns on a judgment (that the claimant is ‘likely to achieve vocational independence’), its fulfilment may not be susceptible to exact demonstration. But to succeed the plaintiff must bring the court to the conclusion that the condition was not fulfilled. That assessment is one of substance …  ”
[37]
Subsequent cases in the District Court on ACC appeals have restricted this decision to judicial review. Nevertheless, where the issues are raised on appeal, the question must still arise as to whether the District Court may consider whether Section 110(3) is fulfilled. The matter has been considered more directly in Wildbore v Accident Compensation Corporation,6
| X |Footnote: 6
[2009] NZCA 34 
a case dealing with the vocational independence question, in that the Court of Appeal set out at [29]: 
“[29]
The correct approach to s 149 appeals is as follows. First, the District Court is required to come to its own conclusions on its assessment and evaluation of the evidence, and the merits generally. Where the District Court has a different opinion from that of the reviewer, it would be an error of law for it to defer to the reviewer's assessment of the acceptability of, and weight to be accorded to, the evidence rather than forming its own opinion, although the District Court is entitled to have regard to what the reviewer said and give it such weight as he or she thinks appropriate …  ”
[38]
The Court then cites from Austin Nichols & Co Inc v Stichting Lodestar7
| X |Footnote: 7
[2007] NZSC 103, [2008] 2 NZLR 141, (2008) 18 PRNZ 768 
in the Supreme Court, where the Court noted at [5]: 
“[5]
The appeal court may or may not find the reasoning of the tribunal persuasive in its own terms. The tribunal may have had particular advantage (such as technical expertise or the opportunity to assess the credibility of witnesses, where such assessment is important). In such a case the appeal court may rightly hesitate to conclude that findings of fact or fact and degree are wrong. It may take the view that it has no basis for rejecting the reasoning of the tribunal appealed from and that its decision should stand. But the extent of that consideration and appeal court exercising a general power of appeal gives to the decision appealed from is a matter for its judgment. An appeal court makes no error in approach simply because it pays little explicit attention to the reasons of the court or the tribunal appealed from, if it comes to a different reasoned result. On general appeal, the appeal court has the responsibility of arriving at its own assessment of the merits of the case. ”
[39]
It was also made clear that the appellant bears the onus of satisfying the appeal court that it should differ from the decision under appeal. It is only if the appellant considers that the appeal decision is wrong that it is justified in interfering with it. 
[40]
More specifically, in the decision Martin v Accident Compensation Corporation8
| X |Footnote: 8
[2009] 3 NZLR 701 (HC), Young J 
, the High Court limited the Ramsay decision to decisions only of the Corporation, but not to the Court. It confirmed the application of Ramsay to Corporation decisions, but then noted:9
| X |Footnote: 9
Above at [36] 
 
“[36]
In summary therefore: 
(a)
(b)
the review and any appeal to the District Court are to be determined according to the statutory review and appeal rights: Wildbore and Austin, Nichols. The Ramsay principles have no application to such reviews or appeals to the District Court; 
(c)
the approach in (b) therefore requires the reviewer or District Court to consider all the relevant evidence and to decide if they are satisfied the claimant is vocationally independent. The medical assessor's opinion is to be given no pre-eminence solely because of its statutory basis; 
(d)
if the reviewer or District Court reaches a different conclusion on the evidence as to vocational independence than the Corporation (or reviewer) then the decision is wrong, the obligation on the appellant met and a different decision should be substituted; 
(e)
in assessing expert medical evidence factors such as (non-exhaustive) the extent and relevance of the practitioners' qualifications and experience, the comprehensiveness of the evidence gathered, the quality of the report, where the preponderance of opinion lies and the validity of criticism of other medical opinions, will be relevant in deciding the ultimate question. ”
[41]
With respect I adopt the comment of Judge Powell, who put the matter much more concisely in Clancy Buchanan v Accident Compensation:10
| X |Footnote: 10
[2014] NZACC 37 at [60] - [61] 
 
“[60]
Overall the issue of vocational independence has been widely canvassed in the District Court, where it has been continuously emphasised that a holistic and common sense approach should be adopted when considering vocational independence matters. 
[61]
In short the correctness or otherwise of the decision will come down to the robustness of the process, the assessments themselves and a consideration of whether, in the circumstances, the decision makes sense. ”
Ms Becroft for the Corporation approaches this on the basis of an assessment of: (a) the process; (b) the occupational assessment; (c) the independence assessment; and then dealing with the appellant's arguments, which she identifies as: 
(a)
elbow injury and recent back injury; 
(b)
mental injury — subsequently claimed; 
(c)
a more recent work trial not successful; 
(d)
failure to properly consider pain in Dr Dryson's VIMA; 
(e)
insufficient rehabilitation; 
(f)
VIMA failing to take into account historical records, including particularly the appellant's condition in the urinary and bowel symptoms. 
The process 
[42]
I struggle with the submissions of the appellant that there has been an inadequate process in this case. To the contrary it appears to me that when the Corporation has moved through an appropriate process the appellant, on a significant number of occasions, the appellant has raised further aspects or concerns that were not made clear to the person undertaking the assessment at the time on behalf of the Corporation. From an overview of the file it appears that Mr Vivash was motivated to return to work, and sought to find an appropriate occupation. I am unable to see anything in the process that could be described as unfair. 
The occupation assessment 
[43]
No issues were raised with this Court in the occupational assessment and the submissions made by Mr McDonald seem to confirm that position. I have been able to detect nothing in the occupational assessment that failed to identify matters in accordance with the relevant Schedules. 
The VIMA 
[44]
In this regard, the complaints made in relation to Dr Dryson's reports have been the subject of further comment by him. It is correct that Dryson has not mentioned every single issue that has been raised over the years, which runs to many hundreds of pages. Given the commentary by Dr Walker, which does not suggest that he has problems with his bowel, I am not satisfied that the issues that have been identified are ones that would preclude work. It is clear that Mr Vivash has undertaken work up to the period required for the purpose of the statute, without any particularly identified issues. 
[45]
I am particularly concerned about the suggestion that the Corporation should take into account later changes in assessing whether or not the decision made in June 2012 is valid. Clearly this appeal relates to the date on which the decision was issued, and subsequent injuries or claims, such as for the elbow injury and mental injury, were not raised with the Corporation until after the date of the assessment. Although they may have been raised prior to the time of the decision, the Corporation had obtained response to those matters and was satisfied that there was not a new back injury, and that any aggravation did not prevent work. 
Conclusion 
[46]
The conclusion the Court must reach in these matters is a robust one based on all of the evidence. I am satisfied that as at the date the decision was issued Mr Vivash was able to undertake at least three job types, being appliance service person; product assembler and sales assistant — general hardware. Mr Vivash had acknowledged to Dr Dryson his ability to do this. In respect of product assembler, his comment was it's pretty much what I do now
[47]
Some of the issues raised suggest that Mr Vivash's condition deteriorated after the decision. Those are matters that can be considered separately by the Corporation, but do not bear upon the decision made. 
[48]
Overall I reach the conclusion that Dr Dryson was correct in concluding that Mr Vivash was not precluded by way of pain or other symptoms, including his urinary and bowel issues, from participating in work up to 30 hours per week, and that this had been demonstrated. 
[49]
I am unable to see any merit in the argument put forward by the appellant and have concluded that the decision of the Corporation and the review officer were correct and the appeal must be dismissed. 
Costs 
[50]
If there are any cost issues, and these cannot be resolved by the parties, any application is to be filed within 20 working days of the date of this decision, any reply 10 working days thereafter, and a final reply, if any, 5 working days after that. 


Report to Mr G Finch, 09 January 2012, at 
Ngaruhe v ARCIC, DC Auckland, DCA 163/94, 27 July 1995 
Accident Rehabilitation and Compensation Insurance Corporation v Pavarno [1998] NZACC 76 (21 April 1998) 
[2013] NZHC 2967, Kos J 
[2011] NZSC 77, [2011] 3 NZLR 733 
[2009] NZCA 34 
[2007] NZSC 103, [2008] 2 NZLR 141, (2008) 18 PRNZ 768 
[2009] 3 NZLR 701 (HC), Young J 
Above at [36] 
[2014] NZACC 37 at [60] - [61] 

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