Rankin v Accident Compensation Corporation

IN THE DISTRICT COURT AT PALMERSTON NORTH Decision No. 18/2002 AI 259/01 Under The Accident Insurance Act 1998 In the Matter of An Appeal Pursuant to Section 152 of the Act Between Christopher Rankin Appellant And ACCIDENT COMPENSATION CORPORATION Respondent Appearances: A R V Rowlett for Appellant H J P Wilson for Respondent Hearing: 26 November 2001 Judgment: 23 January 2002 RESERVED JUDGMENT OF JUDGE D A ONGLEY ON APPEAL [1] Mr Rankin suffered an accident in February 1994. The consequences of the accident were upper back and neck strain affecting his hands and arms. [2] At the time of his accident he was employed as a spray-painter. He stopped work for a few years and then resumed working part-time as a spray-painter in self- employment. He is now aged 43. He still suffers a degree of incapacity that make it difficult for him to work with his hands above his head and to lift heavy loads. He is left- handed and his left arm and hand are more severely effected than the right. He entered into an individual rehabilitation programme before the commencement of the Accident Insurance Act 1998. The subject of the present appeal is a refusal by ACC to provide rehabilitation assistance by funding a hoist and other equipment that would enable Mr Rankin to manoeuvre under and around vehicles for painting, and to handle a heavy standard spray-painting gun which he is not able to hold for long periods of time without assistance. - 2 - [3] When collecting information, ACC obtained medical advice that if Mr Rankin extended his present part-time hours to full-time spray-painting work, his grip would probably become weaker and he would not be able to maintain that work. Other information from an occupational medicine specialist, Dr Lissa Judd assessed the probable effectiveness of the equipment that Mr Rankin requested and suggested that there was material doubt whether the equipment would work in a practical situation and whether Mr Rankin would be able to make use of it for continued full-time spray- painting. Those considerations influenced ACC in deciding that the proposal to fund the equipment was unlikely to be effective so the Corporation refused to fund it. Law [4] Section 436(6) of the Accident Insurance Act 1998 permits modification of an existing individual rehabilitation. An agreement to modify the plan is to be made between the insurer and the insured person under clause 35 of Schedule I of the Act. Modification involves a discretionary decision by the Corporation and appeal rights are conferred by clause 34. [5] Under clause 54 the purpose of vocational rehabilitation is to help an insured person to maintain employment, to obtain employment or to regain or acquire a capacity for work. Mr Rankin’s purpose in the present case is to maintain his present self- employment and to increase his hours of work so that he would more effectively handle a volume of work and consequently increase his income. His capacity for work would not increase, but his method of work would be adapted to suit his disability. [6] Clause 55 of the Schedule sets out, in order, a hierarchy of considerations which are, in abbreviated form: (a) returning the insured to the job he had before incapacity; (b) returning him to a different job with the same employer; (c) returning him to a similar job with a different employer; (d) returning him to a different job with a different employer using his experience, education or training; - 3 - (e) helping him to use pre-injury skills to obtain other employment. Mr Rankin’s focus is on returning to the same job in self-employment. That has precedence over returning him to different employment or otherwise exploiting the use of his pre-injury skills. [7] Clause 56 requires the Corporation to have regard to whether the vocational rehabilitation is likely to achieve its purpose and whether it is likely to be cost effective in reducing the cost of entitlements as a result of the vocational rehabilitation. [8] Part of Mr Rankin’s case is that the purpose of returning him to spray-paining employment as a self-employed person is a higher consideration under Clause 55 than finding him a different job. He considers that vocational rehabilitation would be likely to achieve that purpose and to be cost effective, because he should achieve a full-time income and reduce the costs of entitlements. There is really no argument about the purpose of vocational rehabilitation. The problem is that ACC does not accept that the provision of equipment is likely to achieve the purpose. That judgement is made on the basis of the material that is available to the Corporation. The principal documents [9] There is a very short letter of 20 August 1997 from Dr Scholtz of Levin Medical Centre stating that Mr Rankin may tackle jobs such as spray-painting, but that continued use of his hands will reduce his grip and cause pain in his arms that will preclude him from full-time work of that kind. There has been no other specialist medical report apart from the report of the occupational medicine specialist Dr Judd. [10] A vocational assessment was made on 21 May 1998. The consultant, Mr Hagan, reported that Mr Rankin had an entrepreneurial approach to creating a business environment for himself, enjoying being his own boss and working on his own. Mr Hagan reported that Mr Rankin was very mechanically minded and the majority of his employment history related to the automotive industry. He had skills and experience in dealing with the public, negotiating sales and purchases of cars and parts; he was able to - 4 - interpret design drawings and engineering schemata for sheet metal processing, measuring, cutting, filing and jointing. He held a Dulux Trade School diploma in spray- painting and had four years experience spray-painting car and truck parts on a production line. He had skills in auto-body repairs, preparing surfaces, restoration work and finishing, dismantling cars and panel beating. He had some knowledge of employment legislation and contract negotiating and accounting methods and principles. The report advised Mr Rankin concerning job seeking and listed various occupations and organisations that might suit him. Mr Rankin then agreed to continue job seeking in an attempt to reduce his dependence on ACC. [11] On 29 September 1998 Jo Williams Goertzen, Physiotherapist, provided a worksite report after visiting the work premises. She suggested that Mr Rankin could be assisted by a hoist to lift vehicles for access to the underside; a step or trestle for access above vehicles; a ceiling hoist pulley system to assist in lifting vehicle parts; and a compressor for use of air tools. [12] In January 1999, Mr Rankin was referred to a job search agency and on 15 June 1999, Dr Judd provided a report to ACC. She reported that Mr Rankin was taking on only small spray-painting jobs because he could no longer lift the large spray-painting gun. He wanted to purchase equipment that was suggested by the physiotherapist Ms Goertzen. Dr Judd reported that he had poor pinch grip on the left side and fairly profound and global weakness of the left arm, while he was powerful on his right side. She said that he would not be able to undertake work requiring two-handed lifting, pushing or pulling, or a lot of fine motor skill, and should avoid work which required him to reach overhead more than occasionally. In reviewing the alternatives she set out jobs that would be suitable. In particular, working as a retail or sales representative for merchandising work in the automotive parts industry. She considered him suitable as a service station attendant or manager but thought there might not be a lot of openings. She considered he would be limited in factory process operations because of limitations on lifting and performing fine motor skills. She considered that because of his weak pinch grip he would not suit occupations requiring handwriting and could only manage - 5 - keyboard work inexpertly. She then referred to the prospect of continuing spray-painting having regard to a probable outlay of $12,000 for equipment and the need to rent suitable premises. Dr Judd said that she could not guarantee that even with the recommended equipment Mr Rankin would be able to physically carry out the bigger jobs requiring a larger spray-gun or that he would be able to attract the necessary work to maintain a business. She said that there was no evidence that a hoist would provide a practical solution unless it is was possible to arrange a mock-up workstation as a test. While she thought that work as a spray-painter may be possible with the recommended equipment, she repeated that it could not be guaranteed and Mr Rankin was physically capable of other work for which there should at least be a work trial. [13] Dr Judd suggested that Mr Rankin might continue part-time as a spray-painter doing small jobs and take on alternative part-time work. Mr Rankin’s response to the last suggestion was that spray-painting work required him to be available to attend customers and pick up and deliver vehicles. He could not do that if he was committed to other part- time work with fixed hours. Requests for information [14] After giving Mr Rankin an opportunity to comment on and discuss Dr Judd’s report, the case manager, Mr Holmes, wrote to Mr Rankin’s advocate on 12 August 1999. Mr Holmes set out the following views by way of argument: (a) That Dr Scholtz’ opinion that continued use of Mr Rankin’s hands would affect his grip tended to be confirmed by the fact that Mr Rankin had shown no increase in his hourly capacity; in fact there may have been some reduction in hourly capacity which suggested that the spray-painting business was probably not maintainable. It is not clear whether that was an inevitable conclusion from the history, but it seems to be a reasonable conclusion and Mr Rankin did not specifically dispute it. (b) Mr Holmes referred to the uncertainty that tended to logically follow that if Mr Rankin undertook longer hours with the assistance of lifting equipment it may be beyond his capacity. He referred to Dr Judd’s opinion that there was no guarantee - 6 - that Mr Rankin could do the work, whereas he could undertake other occupations that had been canvassed and were more certain and medically supported. [15] Mr Holmes invited Mr Rankin or Mr Rowlett to obtain a fitness certificate from Mr Rankin’s general practitioner in order to establish that he would be able to continue spray-painting with additional equipment. Mr Holmes also stated that if Mr Rankin obtained a clearance to work full-time he would no longer have an entitlement as this was his pre-injury occupation. Mr Rowlett pointed out the apparent contradiction in those two propositions. Mr Holmes appeared to suggest that, before providing funding, ACC required a certificate that Mr Rankin was fit for work, in which case he would have no entitlement to further provision. However, I think that the issue Mr Holmes wanted to address was clear enough; if Mr Rankin was already fully fit, then he would be disentitled, but if he wanted to establish to ACC that he would at least be fit enough to extend his hourly capacity with additional equipment then he should obtain a certificate to that effect. It was not appropriate to refer to it as a “fully fit certificate” but the letter made it clear what was required. [16] Mr Rowlett replied on 18 August 1999 stating that there had been no success with other employment options and that Mr Rankin may be forced to work full-time without the hoist equipment. On 26 August 1999 Mr Holmes conveyed to the insured the decision of the Corporation that, without support by any of the medical advisers, ACC was not prepared to go against medical advice. The view of ACC was obviously based on the possibility of increasing incapacity caused by weakening of grip and by the uncertainties otherwise expressed by Dr Judd. Mr Holmes said that Mr Rankin’s objection that he could not take on other part-time work because he could not receive customers was Mr Rankin’s own decision. In other words, ACC was prepared to expect that Mr Rankin should abandon part-time spray-painting in favour of part-time or full- time employment in some other occupation. [17] While the decision of the Corporation was not felicitously expressed, it at least conveyed that ACC had taken into account the medical questions and the lack of certainty of effectiveness of lifting equipment. The question was taken on review and a Review - 7 - Officer gave a decision on 1 September 2000. The Review Officer referred to the same considerations and commented that the evidence indicated that Mr Rankin was influenced by his preference to be self-employed, and that he had not always been available when called by agencies providing assistance with alternate job options. The Review Officer said that Mr Rankin stated that he knew of places that used the recommended equipment but he had not approached anyone to trial the equipment. [18] On the hearing of the appeal, Mr Rowlett contended for greater weight to be placed on the opinion of the physiotherapist that the equipment would achieve its purpose in increasing Mr Rankin’s working hours and output. Mr Rowlett submitted that, if the proposed equipment worked, the cost of weekly compensation would reduce. He submitted that the job search had been unsuccessful. Mr Rankin had given evidence at the review hearing that he was un-competitive for other jobs through lack of appropriate experience and training, and he was competing with younger and better skilled persons. The position had been reached where the only available employment was spray-painting and it was more likely that Mr Rankin would increase his hourly capacity with additional equipment than obtain other employment that would reduce the cost of entitlements. [19] That argument is first, that there had been a full exploration of other suitable employment without result, and secondly that the proposal for equipment would be effective both medically and financially. The answer to the first question is not really clear from the file. It appears that the Review Officer considered that Mr Rankin had not made a real effort to obtain other employment. However the Corporation’s case is that the decision not to provide assistance was properly based on the second question that the material available to ACC simply did not support the likely effectiveness of work with additional equipment. [20] Mr Wilson for the Corporation submitted that ACC was required to consider whether the provision of the equipment should assist Mr Rankin in maintaining or obtaining employment, in the sense of increasing his working hours, having regard to the vocational and medical evidence available. Mr Wilson submitted that the appellant had been unable to obtain a medical clearance. - 8 - [21] I consider that the appeal must fail on the evidence. Mr Rankin was aware of the view that ACC took, based on the opinions of Dr Scholtz and Dr Judd. The Corporation asked him to provide a medical certificate. There was evidence at the review hearing that he had stated that similar equipment worked in other places but he did not identify those places or assist in getting the necessary material before the Corporation. In the end ACC based its decision on the material that it had after making appropriate enquires. I agree that the Corporation had discharged its responsibility in collecting information and in the circumstances of this case it was for Mr Rankin to obtain the medical certificates or other workplace information that might have led to a different conclusion. While the prospect of obtaining employment in another occupation may well be of no practical assistance at all to Mr Rankin, I find that the Corporation addressed the proper considerations in making its decision to refuse payment for equipment. The appeal is therefore dismissed. _______________________ (Judge D A Ongley) District Court Judge Signed at 3.00 pm on 23 January, 2002