Kempster v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 291/2004 UNDER The Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN BRODERICK WILLIAM KEMPSTER Appellant (Appeal No. AI 114/04) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at NELSON on 24 August 2004 APPEARANCES/COUNSEL Mr A Gibbons for Appellant Mr A Barnett for Respondent RESERVED JUDGMENT OF JUDGE J D HOLE Background 1. On 19 September 1995, the appellant fractured his right scaphoid (a bone in his right wrist). After surgery and post-operative treatment he went back to work. A Herbert screw had been inserted. 2. On 17 October 2001, he sustained an injury to his lumbar spine while working at a building prefabrication business. Cover was accepted and he received https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2004/291-2004.doc 2 weekly compensation in respect of this injury until 7 March 2002. The respondent had decided to suspend the appellant’s weekly compensation because the appellant had resolved not to continue with his rehabilitation. 3. On 13 July 2002, he sprained his right wrist. This injury apparently exacerbated his previous right wrist injury. He was incapacitated. On 22 July 2002, the Corporation commenced paying the appellant weekly compensation for this injury. 4. On 22 August 2002, the appellant hit his left wrist with a hammer, which resulted in a fractured carpal bone. Rehabilitation Procedures 5. On 10 December 2002, there was an initial occupational assessment of the appellant. Various work options were deemed appropriate for him. 6. On 24 January 2003, Dr Ruttenberg, an occupational medicine registrar, carried out an initial medical assessment. 7. Because of ongoing problems with the wrist, Mr Knight, an orthopaedic surgeon, recommended the removal of the Herbert screw and this procedure was undertaken on 27 February 2003. 8. On 9 March 2003, the appellant and his case manager agreed on an updated individual rehabilitation plan. 9. On 12 March 2003, the Corporation referred the appellant to a six week work preparation programme. This was completed on 16 May 2003. 10. Further assistance was given to the appellant during the ensuing months. 11. On 15 August 2003, the Corporation informed the appellant that it considered that his individual rehabilitation programme was complete and that it wished to assess his vocational independence. 12. On 4 September 2003, a vocational independence occupational assessment was undertaken and various work types were deemed suitable for the appellant. 13. On 11 September 2003, Dr Turner, a specialist in occupational medicine, carried out a vocational independence medical assessment. In his 3 22 September 2003 report, Dr Turner certified the appellant as having the capacity to engage, for 35 hours or more a week, in the following work types: (a) other protective service workers; (b) stock clerk. 14. On 3 October 2003, the Corporation informed the appellant that his vocational independence assessment showed that he had vocational independence and an ability to work for 35 hours or more per week in the two job options specified by Dr Turner. Accordingly, he was informed that his weekly compensation would cease on 1 January 2004. 15. The appellant sought a review of the Corporation’s decision. On 5 February 2004, the Reviewer dismissed the application for review. The Reviewer considered that the appellant had not shown that Dr Turner’s report was flawed in any way or that Dr Turner had failed to consider any relevant information. This Appeal 16. In his notice of appeal, the appellant stated that the appeal was based on the following grounds: (i) The occupational assessor identified occupations that the appellant is unable to perform. (ii) The medical assessor did not consider other injuries. (iii) The medical assessor underestimated the conditions at issue. 17. At the hearing, the challenge to the occupational assessment was abandoned. 18. At page 5 of his submissions, the advocate for the appellant summarised the issues requiring determination in this appeal as follows: “The medical assessor did not consider Mr Kempster’s other established injuries or the impairments from those injuries. The Corporation did not provide to the medical assessor all the information it had that was relevant to the vocational independence assessment, medical assessment, nor of their ongoing effects or impairment upon him, was referred to or considered by the assessor. 4 The medical assessor underestimated the impairment Mr Kempster is suffering from his wrist injury”. 19. At the conclusion of the hearing, these issues were refined by the appellant’s advocate. He submitted: (a) the medical assessor (Dr Turner) failed to examine the appellant’s back; (b) the medical assessor did not have all relevant information before him. In particular, he did not have the Corporation’s file pertaining to the back injury. (c) He acknowledged that Dr Ruttenberg had examined the appellant’s back but claimed that the same examination should have been undertaken by Mr Turner. Dr Ruttenberg’s report was not contemporaneous with the medical assessment. Legal Position 20. Section 108 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 relates to the procedure involved in assessing a claimant’s vocational independence. Both an occupational assessment and a medical assessment must be undertaken. 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 which has been identified in the preceding occupational assessment, and which has been reflected in the preceding individual rehabilitation plan. 21. Clause 28 of Schedule 1 of the Act sets out the way in which a medical assessment is to be undertaken. In particular, a medical assessor must take into account: “(a) information provided to the assessor by the Corporation; and (b) any individual rehabilitation plan for the claimant; and (c) any of the following medical reports provided to the assessor: (i) medical reports requested by the Corporation before the individual rehabilitation plan was prepared; 5 (ii) medical reports received during the claimant’s rehabilitation; and (iii) the report of the occupational assessor under Clause 26; and (iv) the medical assessor’s clinical examination of the claimant; and (d) 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 is required to provide the medical assessor with all information the Corporation has that is relevant to a medical assessment. 22. It is not easy for an appellant to upset a medical assessment. When referring to Ramsay v Accident Compensation Corporation [2004] NZAR 1, Judge Ongley, in J.A. v ACC (District Court, Wellington, 184/04, 5 July 2004) stated at paragraph 14: “Hansen J observed that there would be situations where the respondent and the Court can go behind the assessment, but they will be quite limited and fall into certain categories discussed in the judgment, namely: … (b) Situations where the Court may interfere with such assessments will include where a diagnosis is shown to be flawed, or where the procedure adopted is shown to be defective. (c) In other cases, the Court will require clear and cogent reasons to set aside an occupational or medical assessment completed as part of the work capacity process". Determination 23. It is apparent from Dr Turner’s medical assessment itself that he did take into account all the matters referred to in Clause 28. In particular, he did make a clinical examination of the appellant, although I accept that he may not have examined the appellant’s back. He did not need to do so as Dr Ruttenberg had conducted such an examination and reported on it on 24 January 2003. It was not a matter which was then troubling the appellant. Entitlements in 6 respect of it had ceased in 2002. Because of this, there was no need for Dr Turner to refer to file 015 (the back file) and there was no need for the Corporation to have referred it to Dr Turner. The appellant’s back was not an issue at the time the medical assessment was being undertaken and nor was it the subject of the vocational independence assessment procedures. 24. I acknowledge that Dr Ruttenberg’s report was earlier than Dr Turner’s medical assessment upon which the Corporation relied for its decision. However, there were only about eight months involved and, as I have already indicated, the back was not troubling the appellant. 25. There is no evidence before the Court that Dr Turner’s diagnosis was flawed or that the procedures undertaken by him were in any way defective. The appellant has produced no clear and cogent reason as to why the medical assessment should be set aside. Conclusion 26. In my opinion this appeal was totally unmeritorious. It is dismissed. Conduct of Appeal 27. In his submissions in support of the appeal, the appellant’s advocate sought costs. Obviously, as the appeal has been declined, the appellant is not entitled to costs. Dated at WELLINGTON this 15th day of September 2004 at 11 am. J D Hole District Court Judge