Handley v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND [2014] NZACC 244 ACR 613/09, ACR 050/11 ACR 201/13 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN BELINDA HANDLEY Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 10 June 2014 Appearances: H J Peart for the appellant F L Becroft for the respondent Judgment: 30 September 2014 RESERVED JUDGMENT OF JUDGE L G POWELL [1] The appellant, Belinda Handley, suffered injuries to her back in 1993 and 1994 which have prevented her from continuing in her pre-injury occupation. [2] In 2007 Ms Handley was found to be vocationally independent in seven work types ("the 2007 decision"). Ms Handley challenged this decision on the grounds that the vocational independence medical assessment ("VIMA") had inadequately addressed her depression arising as a result of her injuries, as well as her ongoing pain issues. [3] Despite this challenge, three work types (being Information Clerk, Patient Receptionist and Motel Receptionist) were upheld at review. Whether this decision was correct forms the first of three appeals that are the subject of this judgment. [4] The challenge to the 2007 decision had revealed evidence of deterioration of Ms Handley's condition, and Ms Handley accordingly requested a reassessment of her vocational capacity. The request was refused by the Corporation, whose decision was upheld at review on the basis that by that point Ms Handley's cover for depression had been revoked by the Corporation. Although the request for reassessment forms the basis of the second appeal before me, because Ms Handley's cover for depression was subsequently reinstated and as a consequence of that reinstatement a reassessment was in fact carried out, the second appeal is not therefore in dispute before me. [5] The reassessment occurred in early 2012 at which time Ms Handley was found to be still vocationally independent in seven work types; namely Hotel and Motel Receptionist, Medical Receptionist, Inquiry Clerk, Stock Clerk, Production Clerk, Ticket Seller, Carpark Attendant and Rental Salesperson (DVD and Video) ("the 2012 reassessment"). Ms Handley again argues that the decision has not taken appropriate account of her ongoing depression, nor her ongoing pain condition. Ms Handley's challenge to the 2012 reassessment constitutes the third appeal before me. [6] As a result, out of the three appeals filed there are two issues before me: [a] Was the 2007 decision finding Ms Handley vocationally independent correct? [b] Was the 2012 reassessment finding Ms Handley still vocationally independent correct? [7] At the outset I note that the vocational independence process 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. [8] 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. [9] In essence Mr Peart on behalf of Ms Handley submitted that Ms Handley was never vocationally independent at any point in the process, while Ms Becroft for the Corporation argues that irrespective of any deterioration at certain points both of the decisions were properly carried out and fairly reflected Ms Handley's vocational capacity at the relevant times. Was the 2007 decision correct in finding Ms Handley vocationally independent? [10] Mr Peart submitted that in respect of the 2007 decision both the Vocational Independence Occupational Assessment ("VIOA") and VIMA were defective. With regard to the VIOA, Mr Peart submitted that notwithstanding that Ms Handley accepted "that she has some level of data entry ability and she does keep her own records of her gardening business on her computer"..."there is some doubt that the ... computing course provided by ACC adequately equipped Ms Handley for receptionist type work types ultimately upheld on review". [11] Ms Handley's primary challenge to the 2007 decision was however on medical grounds. Mr Peart submitted that although the VIMA undertaken by Dr W ED Turner, a specialist in occupational medicine, noted that Ms Handley was suffering from depression, Dr Turner had "not provided any further details about [the depression] or other psychiatric issues". Instead Mr Peart relied on Ms Handley's own evidence as well as on reports by two psychiatrists, Dr Gil Newburn and Dr Rajendra Pavagada who both elaborated on the seriousness of Ms Handley's depressive condition. Mr Peart also relied on a report by Dr David Black and Dr Kristin Good, occupational and environmental medicine specialists, who as well as commenting on Ms Handley's depressive condition also considered Ms Handley's ongoing pain issues. Taking this evidence together it was Mr Peart's submission that Dr Turner "did not have sufficient regard for either Ms Handley's chronic pain syndrome or her depression", and Dr Turner's report was "not a clearly reasoned medical assessment that is sufficient for a robust finding of vocational independence". Discussion and Analysis [12] I begin my analysis by considering the challenge to the occupational component of the 2007 decision. Given the concession noted in [10] above that Ms Handley has at least some basic computer skills as well as the computer training provided by the Corporation, there is no factual basis upon which the work types chosen can be set aside. In particular apart from Mr Peart raising "some doubt" about the level of Ms Handley's computer skills (which is not of itself a sufficient basis to set aside the VIOA) it is apparent that there is otherwise no evidence before me that from an occupational perspective Ms Handley lacks the "good organisational and problem solving skills, [and] the ability to greet and welcome visitors and answer enquiries". I therefore conclude on the facts before me that no occupational challenge to the 2007 decision can be sustained. [13] Instead a number of the matters noted by Mr Peart - planning, organisation, communication skills and cognitive functioning seemed to me to be better considered in terms of the challenge to Dr Turner's VIMA given the thrust of much of the evidence relied on by Mr Peart is the effect of Ms Handley's depressive condition and ongoing pain upon her ability to plan, organise and communicate or to otherwise concentrate on the task in hand. [14] The problem for Ms Handley with regard to the 2007 decision is that the evidence is overwhelming that her depression and pain were largely under control at the time of the VIMA when it was undertaken by Dr Turner in October 2007. Instead the evidence is clear that Ms Handley's depression (and in consequence her pain) only started deteriorating to any significant degree at the beginning of 2008 as Ms Handley faced the impending end of weekly compensation payments as a result of the 2007 decision itself. Of all the evidence before me it is only Dr Newburn who suggests that Ms Handley was suffering from significant depressive effects at the time of the VIMA, but this conclusion was entirely speculative given that he assessed Ms Handley some eight months after Dr Turner completed his assessment. Even Dr Newburn however accepted in his report of 6 July 2008 that "Ms Handley is substantially more depressed than she was in October 2007". Dr Pavagada likewise noted in his report of 10 July 2008 "... according to Belinda, prior to stopping the ACC payments in January 2008, depression was well under control" [15] This position was further confirmed by Ms Handley's general practitioner notes which show a material difference between her final appointment in 2007 (on 6 November 2007 - after the VIMA) and her first appointment in 2008, with depressive symptoms being very much in evidence by March 2008. Similarly in the course of the 2009 review of the 2007 decision Ms Handley's evidence was recorded by the reviewer as being that "in January 2008 her condition did worsen as she was trying to build her business and ACC had stopped the payments", with similar evidence provided in the 2011 review when Ms Handley noted that she had enjoyed 'good periods of functioning in terms of [her] depression. Finally Drs Black and Good in their joint report of 16 July 2010 recorded that it was clear that Ms Handley "suffered a deterioration in terms of her ability to work around January 2008", while even Mr Peart in a letter to a psychiatrist in March 2011 noted: The themes from the psychiatric reports include an interrelation between her chronic pain and her depression and a fluctuation in depressive symptoms which, prior to January 2008 was mostly well controlled with medication. [16] Taking this material together I find no basis for concluding that the view formed by Dr Turner as regards to Ms Handley's depression in October 2007 was in any way wrong when he noted in the VIMA that: Currently Belinda stated her condition is stable. She felt she was not deteriorating in any way .. . She also describes depression, which is now reasonably well controlled. She indicated that since she succeeded in gaining employment and getting out in the community that he depression symptoms have abated quite significantly. She describes a background history of recurrent depression in relation to her back complaint but as previously indicated now has this under good control ... [17] I find Dr Turner's report to be careful, reasoned and comprehensive which as well as noting Ms Handley's pain condition and depression also summarised the scope of Ms Handley's then work activities, and recorded a thorough physical examination. On the other hand leaving aside the overwhelming consensus that Ms Handley's condition did not deteriorate until the beginning of 2008, the assessments undertaken by Dr Newburn and Drs Black and Good were undertaken so long after the VIMA as to be of almost no assistance on the issue of Ms Handley's vocational capacity as at the date of the VIMA. I accordingly have no hesitation in preferring Dr Turner's analysis regarding the medical suitability of the Information Clerk, Patient Receptionist and Motel Receptionist work types. Conclusion - 2007 Decision [18] For the reasons set out above I am satisfied that the vocational independence assessments that underpin the 2007 decisions were appropriate, and I uphold the 2007 decision as modified in review. Was the 2012 reassessment correct in finding Ms Handley to be still vocationally independent? [19] With regard to the 2012 assessment Mr Peart questioned the adequacy of the VIOA, which was again carried out by Mr Birchfield, and called into question once more Ms Handley's computer skills but "accepted the vocational independence question is primarily a medical one". [20] As with the 2007 decision Mr Peart submitted that the VIMA, again undertaken by Dr Turner on 6 March 2012, inadequately addressed Ms Handley's depressive condition and ongoing pain. Mr Peart submitted that with regard to depression Dr Turner's conclusions were "in conflict" with the psychiatric opinions of Dr Pavagada and Dr Menkes, as well as those of Ms Handley's general practitioners, Dr Reddy and Dr Santrum. In addition Mr Peart relied on a further report from Dr Black and evidence from Ms Handley to the effect that the work types for which Ms Handley was found to be vocationally independent were not suitable. In Mr Peart's submission their conclusions were further banked up by the fact that Ms Handley was recognised in 2009 as having a whole person impairment of 15%. In Mr Peart's submission the evidence called in support of Ms Handley has: ... addressed the specifics of Ms Handley's injuries, her pain, depression and other issues; whereas Dr Turner has started from the point that the effects of Ms Handley's injuries are manageable and do not really present a barrier to work. Dr Turner's approach, it is submitted, is at odds with the weight of evidence. Discussion and Analysis [21] I start my analysis with regard to the 2012 reassessment with reference to the occupational assessment and for the reasons set out in [12] above reach an identical conclusion as I did with regard to the 2007 decision. Again there is no substantive argument advanced and if anything any challenge to the occupational assessment carried out by Mr Birchfield is even more half hearted than in respect to the 2007 decision. As well as Mr Peart's submissions, for the sake of completeness I also noted some detailed comments provided by Ms Handley herself with regard to a number of factual matters that she took issue with with regard to the VIOA, but I ultimately conclude that these were not sufficiently material to undermine the results of the assessment having regard to the submissions made by Mr Peart. [22] With regard to the issues raised with Dr Turner's second VIMA it must be noted at the outset that while there is no doubt that depression and/or pain can be incapacitating neither condition prevents a finding of vocational independence in and of themselves. Instead it is important to consider the functional limitations imposed by these conditions and that these are accurately reflected in the VIMA. Similar considerations apply to the reference to the whole person impairment in respect of Ms Handley. The fact of impairment does not necessarily translate to any restriction on vocational capacity. Dr Turner in the VIMA while explicitly noting both Ms Handley's depression and ongoing pain nonetheless concluded that based on her proven level of activity she was capable of working 30 hours or more per week in the identified work types. More particularly Dr Turner noted: [Ms Handley] accepted that working in her nursery business was a positive influence on her wellbeing. Vocationally Belinda was of the view that she could not work anymore hours than 20 per week in her current role. The difficulty that she faces is that her job as a nursery propagator represents the medium physical demand manual handling component that clearly is exacerbatory with respect to her pain disorder. In my opinion there is no contraindication to her increasing her hours to 30 or more per week in an appropriate sedentary to light physical demand role where there is no requirement for repetitive twisting, bending and lifting at the medium physical demand level. ... In my opinion [Ms Handley] clearly ... does have ongoing pain issues, which does have an influence with respect to medium physical demand or greater manual handling roles. Pain issues would be less of a problem for her in an appropriate sedentary to light physical demand role where she has the autonomy to change posture regularly throughout the work cycle ... [23] In contrast, the evidence relied on by Ms Handley does not detract from the VIMA. In particular while there is no doubt that Ms Handley has depression the psychiatric assessments that occurred in the period from 2008 to 2011 (with regard to the 2007 decision and the attempts to reinstate cover for depression) are of limited assistance in determining the extent to which depression was impinging on her vocational capacity in early 2012. Ms Handley's own detailed comments about both the VIOA and VIMA and in particular her criticism that Dr Turner had not assessed her depression likewise cannot constitute a sufficient challenge to the medical evidence. In turn, Dr Black's response to the VIMA was prepared in December 2012, some nine months after Dr Turner's VIMA for the 2012 reassessment and therefore provides little assistance in determining that the VIMA undertaken in respect of the 2012 reassessment was not an accurate reflection of Ms Handley's vocational capacity at the time. [24] Subsequent correspondence from Dr Tuner noted there are a number of differences in examination recorded by both Dr Turner and Dr Black which is hardly surprising given the length of time between assessments. On the other hand while Dr Black acknowledged Ms Handley's achievements in being active and establishing and running her nursery part time, continuing to make clothing (including most of her own), and "providing some assistance for elderly residents locally", he did not really engage with Dr Turner's conclusion that 20 hours in a medium physical job should mean that 30 hours per week in a sedentary to light physical demand is sustainable. Instead Dr Black stated: ... I don't agree that pain issues would be less of a problem in an appropriate sedentary to light physical demand role. Many cases, and I believe Belinda's is one, a physically active role, within the limits imposed, is likely to be better than a sedentary position. However the difficulty, which is inadequately covered in Dr Turner's report, is the endurance, reliability and fatigue resistance of the worker with this pain problem. .. In my opinion, Belinda's depression is in partial remission and is adequately controlled for the purposes of getting on with the life she has built but she still does have significant depression. [25] What Dr Black seems to be saying is simply that Ms Handley has no capacity to increase her hours in her current work areas but does not seem to be addressing Dr Turner's conclusion that Ms Handley could work for longer in a physical role which more appropriately reflected her physical limitations. As a result of his conclusions Dr Black ruled out the work types for which Ms Handley had been found to still be vocationally independent by Dr Turner, primarily because Ms Handley's depression and/or pain remained uncontrolled and that therefore the work types were unsuitable either because she could not cope with the pressure, that she would be unable to concentrate, or the depression is otherwise "still an impediment to her". [26] Having considered Dr Black's 2012 report carefully I do not find his analysis persuasive, with his explanations for Inquiry Clerk, Stock Clerk, Production Clerk and Ticket Seller being particularly unconvincing. Instead I find Dr Turner's critique of Dr Black provided in 22 January 2013 to comprehensively answer the concerns identified by Dr Black, and note the following comments in particular: I agree entirely with Dr Black that [Ms Handley] does have chronic mechanical low back pain and it was on this basis that I concluded that she would be much more suitable for sedentary to light physical demand work than the medium to heavy physical demand manual handling role that she is currently doing. In my view there is a clear contraindication here. Dr Black argues that she is quite capable of managing medium to heavy physical demand nursery-type work up to 20 hours per week but would not by extrapolation being able to undertake 30 hours per week of sedentary to light physical demand work. In my view it is quite reasonable to extrapolate that if Ms Handley is able to work 20 hours per week in a medium to heavy physical demand task such as at the nursery job that she currently does where there would be significant mechanical loading on her lumbar spine she is much more likely to be able to undertake a sedentary to light physical demand role particularly where she is able to change posture regularly throughout the work cycle. Indeed the assessment that I carried out I noted that her mechanical symptoms were significantly exacerbated by lifting and carrying with associated bending, squatting and crouching movements, which would all be required in her nursery role. Such movements would not be required in the roles that I deemed to be sustainable. Dr Black makes no reference to the adverse biomechanics associated with her nursery work in his report. There is little doubt that at the assessment I carried out that her depression was in remission. Mr Black now takes the view that it is in partial remission, which was not the case when I assessed her on 09/04/12. . . . Even if I was wrong and that her depression was in partial remission there would be no influence upon my opinion that she has vocational independence. This is because her depression is currently sufficiently controlled to allow her to work not only in her nursery job, which would in my view unduly load her lumbar spine from a mechanical perspective (therein likely exacerbating the "pain generator" described by Dr Black") but also allows her to work with local residents (which is itself a medium to heavy physical demand task if there is any client transfer involved) and undertake sewing machinist activity and all the activities of daily living, which is clearly tantamount to an ability to sustain 30 or more hours per week in the job options as described. This is a simple commonsense extrapolation. . . . ... it is a spurious argument to conclude that [Ms Handley] can undertake all these activities which involve significant loading to the lumbar spine yet is unable to work 30 or more hours per week in a sedentary to light physical demand task, which does not unduly load the lumbar spine. [27] Finally, with regard to whether or not Ms Handley had the capacity to perform to the level of mental activity required in any of the job types for which she was found vocationally independent in respect of the 2012 reassessment, Dr Turner noted: Dr Black now says that [Ms Handley] is now working 20 hours of work per week in her job i.e. she has increased her hours despite the fact that her condition is "worse". In addition Dr Black noted her ability to work with residential care and as a sewing machinist but doesn't stipulate her hours. By extrapolation, it would seem to me incorrect to argue that she is incapable of sustaining the mental activity requirements of the job options detailed in my report. [28] Overall I conclude, as I did with regard to the 2007 decision, that Dr Turner's VIMA was considered comprehensive and logical, and carefully takes into account the actual capacity demonstrated by Ms Handley. Conclusion - 2012 Reassessment [29] Taken together I am satisfied on the evidence before me that the vocational assessments that form the basis for the 2012 reassessment were correct, and that in particular Dr Turner did appropriately take into account the functional effects of Ms Handley's depression and ongoing pain. I therefore conclude the 2012 reassessment confirmed that Ms Handley remained vocationally independent in the work types specified as at the date of the Corporation's 2012 decision. Decision [30] As a result of the conclusions I have reached appeals ACR 613/09 and ACR 201/13 are dismissed. ACR 050/11 which involved whether there had been a deterioration that entitled Ms Handley to a reassessment is technically allowed, but the reassessment sought is the 2012 reassessment considered above and therefore there are no further steps consequential on the allowing of that appeal. There is no issue as to costs. Judge L G Powell District Court Judge ACR 613-09.doc(aw)