Palmer v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 234/2005 IN THE MATTER of the Injury Prevention, Rehabilitation & Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN COLIN JOHN PALMER (AI 467/04) Appellant AND - ACCIDENT COMPENSATION CORPORATION Respondent HEARD at TAURANGA on 6 July 2005. APPEARANCES Mr M S Lake, Counsel for Appellant. Mr A G Barnett, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal concerns the respondent’s decision of 20 February 2004, whereby it determined that the appellant had attained Vocational Independence within the meaning of the Act. [2] The Respondent’s decision had determined that the appellant had attained Vocational Independence in respect of seven work types. Those work types were reduced to five as a consequence of the Review Decision, and for the purposes of this appeal, only four work types are in issue, Counsel for the Respondent conceding that one of the work types, namely Fire Fighter, cannot be sustained. [3] The four remaining work types which are in issue in this appeal are: (i) Broadcasting/Transmitting and Studio Equipment Operator. (ii) Diversional Therapist. 467.04 (pg) 2 (iii) Radio and/or Televison Presenter. (iv) Tour and Travel Guide. [4] The background facts relevant to the determination of this issue may be stated as follows: • At the time the Respondent made its decision the appellant was aged 37 years. • The injuries for which the appellant has cover and which are relevant to this appeal are as follows: (i) January 1980 Fell from a school balcony and suffered head injuries. (ii) November 1980 Left Tibial fracture with head injury when he fell from a horse. (iii) January 1985 Fell from the bonnet of a car and struck his head. (iv) August 1988 Low back injury. (v) July 1989 Left foot injury resulting in amputation of left foot. (vi) May 2003 Assault causing head injuries. • At the time the appellant suffered the left foot injury he was working as a farm worker and the Respondent accepted that this injury was incapacitating from the date he suffered it. • The appellant has had periods of employment from 1990 onwards, including forestry work, fire lookout work, as well as that of a Pruner and Assistant Storeman. • Initial Occupational and Medical Assessments were carried out in September and November 2002 respectively. • Those assessments identified a number of work types that were identified as being vocationally and medically viable. However, it was 467.04 (pg) 3 the advice of the Medical Assessor, Dr Ruttenberg, that the appellant undergo a neuropsychometric assessment to assess any cognitive impairment which may have resulted from previous traumatic brain injury. Dr Ruttenberg stated: “Realistically he needs a neuropsychometric assessment to help formally delineate whether indeed impairment is present and the severity and extent of any such impairment. Clearly it will impact on potential job choices and the ability to maintain himself in the job choices.” • The appellant was referred to Dr Karen Mitcheson, Clinical Psychologist, and she interviewed the appellant in January 2003 and provided a 7-page report for the Respondent. • Dr Mitcheson advised that the appellant’s cognitive abilities would not be an obstacle to paid employment, providing his literacy levels are taken into account and he is not placed under time pressure. • Following completion of further Vocational Rehabilitation initiatives, the appellant was referred for assessment of Vocational Independence in January 2004. • An Occupational Assessment was carried out by Mr Andre Roux of AIMAT NZ Ltd on 12 January 2004. • Mr Roux identified a total of 21 work types for which he considered the appellant suitable based on education, work experience and transferable skills. • The appellant was then referred to Dr Paul Friedman, Rehabilitation Medicine Specialist, and he carried out a Medical Assessment on 11 February 2004. • As earlier stated, Dr Friedman identified 7 work types as being suitable for the appellant for 35 or more hours per week and he reported accordingly to the Respondent. • Following receipt of the Medical Assessment, the Respondent issued its decision on 20 February 2004, determining that the appellant had 467.04 (pg) 4 attained Vocational Independence in seven work types and that his weekly compensation would therefore cease in three months from that date. • The appellant sought a review of that decision and for the purposes of that review a Neuropsychiatric Report was obtained from Dr Gil Newburn. It should be noted that Dr Newburn was familiar with the appellant’s case history as he had had consultations with him in 1991, 1993, 1996 and 1997. • A Review Hearing took place on 25 August 2004 at which the appellant was represented by Counsel. Dr Newburn’s report was introduced and it was the principal submission of Counsel that the Medical Assessment of Dr Friedman was suspect in that it had little or no regard for the mental consequences of the head injuries suffered by the appellant and which were identified in Dr Newburn’s report. • In his decision dated 3 September 2004 the Reviewer ruled that two of the work types for which Vocational Independence had been identified were found by him to be unsuitable. The Reviewer did not consider Dr Newburn’s report cast doubt on the cogency of Dr Friedman’s assessment. He made an order confirming the appellant’s Vocational Independence in respect of the five remaining work types. • For the purposes of the appeal to this Court no further evidence has been introduced. [5] The submissions of Counsel for the Appellant are solely concentrated on the Medical Assessment of Dr Friedman. Mr Lake submitted that the Medical Assessment did not have regard for the mental consequences of the head injuries suffered by the appellant and which affected his ability to undertake re-employment in the work types submitted. [6] Counsel submitted that Dr Friedman had focussed only on the appellant’s physical ability on the basis that the appellant had normal mental function, whereas Counsel submitted that such was not the case and that Dr Friedman had thereby overlooked an essential aspect of the appellant’s injuries. Mr Lake submitted that the reports of Dr Newburn and Dr Hancock identified those deficiencies and which were sufficient to establish that the Medical Assessment was flawed. 467.04 (pg) 5 [7] Dr Newburn had interviewed the appellant on 1 July 2004 and provided a report dated 8 July 2004. He had for reference Dr Friedman’s Assessment and, inter alia, the report of Dr Karen Mitcheson. Dr Newburn identified that he was familiar with the appellant’s history from previous consultations. Dr Newburn identified the appellant’s various injuries which he had suffered over the years and then went on to state as follows: “Currently, Mr Palmer presents with a broad range of problems. There are significant disturbances in attentional function. This includes issues with attention span, but also particularly in dividing and alternating his attention. He reports memory as being impaired. There are disturbances in motivation (generating an idea bout what to do) and also in initiation of action. Memory as reported is impaired. There is a disturbance in impulse control, and he reports that his “tolerance is really poor. . . . He has also experienced a recurrent depressive disorder. He reports that he has been more settled in the last three months, but previously has been extremely agitated when depressed. This has been to the extent that he has required risperidone being added to his current antidepressant (paroxetine). He reports that the risperidone has made a difference. This may also have assisted with some of his persecutory notions.” Dr Newburn then examined each of the work types which had been identified as being suitable for the appellant and he commented on the four that are in issue in this appeal as follows: “Broadcasting, Transmitting or Studio Equipment Operator. This work involves in particular multi tasking. His disturbance in dividing and alternating attention would interfere with this. While it is possible that he could sustain the work for short periods of time, there would inevitably be development of fatigue, with a fall-off in cognitive function further. He is therefore not capable of sustaining this work for 35 hours or more per week. Diversional Therapist. Diversional therapists work in an environment which involves in particular large numbers of elderly people with degenerative brain conditions. This requires a high level of tolerance, and ability to infer what they might be meaning or thinking. Mr Palmer is impaired in these areas, and would be likely to lose his patience readily with them. His lack of tolerance for any situation that creates difficulties would preclude his working for 35 hours or more in this type of work. Radio and/or Television Presenter. The demands for dividing and alternating attention would preclude his doing this work. The need to “think on one’s feet” would not be possible for him in this environment. Also, the demands for movement in remaining on one’s feet for a significant period of time would make this difficult. Furthermore his developmental language difficulties preclude his having the level of verbal facility required. He could work in this area for 35 or more hours per week. 467.04 (pg) 6 Tour and Travel Guide. This work involves a high level of organization, tolerance of others, and the ability to “think on one’s feet” when interacting with the client base. He is impaired in all these areas, and as a result could not carry out this work for 35 or more hours per week.” [8] In addition to that report, two other reports from Dr Newburn have been referred to the Court, the first of these being dated 10 September 1992. The appellant had been referred to Dr Newburn for assessment of Lump Sum Compensation pursuant to Sections 78 and 79 of the 1982 Act arising from the head injury which he suffered when aged 13. It is to be noted that the appellant was 25 years of age at the time. Dr Newburn identified that the appellant had suffered a head injury from this fall and that it had caused cognitive difficulties. He described the appellant as having significant impairment disabilities and which he assessed as giving rise to a Whole Person Impairment of 25% due to that head injury. [9] In a subsequent report of April 1998, Dr Newburn was again asked to report to the Respondent on the appellant and he noted that he had last seen him in July 1997. Dr Newburn then stated as follows: “At the stage of last being seen, the issues centred around psychological responses to a number of life events. These were influenced by his previous brain injury, and difficulties in coping and compensating for these issues. However, it was my view at the time that it did not preclude his addressing employment, and I suggested to him at that stage that he should see the staff at Workbridge to address a return to employment via a graded work experience. He has had recurrent depressive issues, and had been successfully treated with moclobemide for this. However, at times he has said that he feels “too high”. [10] Dr Mitcheson’s Report, which was also available for reference by Dr Friedman, gave her summary and conclusions as follows: “Mr Palmer is a 36 year old man with a history of developmental language difficulties, literacy difficulties, and numerous accidents. He has been in receipt of earnings related compensation since 1995, in relation to a 1989 accident, after which his left foot was amputated. He has a history of psychiatric difficulties, with diagnoses including: depression (Dr Newburn and Dr Collier), and features of paranoid personality disorder (Dr Collier). A recent vocational assessment report raised a query as to whether Mr Palmer had also sustained cognitive impairment subsequent to a brain injury in 1980, when he fell from a horse at the age of 13. At the current assessment Mr Palmer reported that he did not lose consciousness in this accident, but reported another five accidents (between the ages of 5 and 20) in which he had lost consciousness after an injury to his head. His accounts of these accidents were a little unclear, but 467.04 (pg) 7 suggest that he may have experienced some post-concussional difficulties, which have probably resolved. Mr Palmer described his current difficulties as primarily relating to his grievances in regard to his belief that he was unfairly dismissed by a previous employer, but also involving other incidents in which he believes he has been victimised, e.g., by his ex-partner, the police, his associates, previous therapists and ACC. His main goal for the future was to “prove [his] innocence” in respect to the above incidents. On specific questioning, Mr Palmer also reported difficulty with: reduced mobility, pain, nausea (side effect of pain medication), poor concentration, forgetfulness, low mood at times, and difficulty coping with stressful life events. His view was that he has Post Traumatic Stress Disorder (PTSD) as a result of psychological abuse as a child and subsequent events. On formal testing, Mr Palmer’s overall level of cognitive functioning was in the “Average” range. His reading age was assessed at approximately 9.5 years. Two areas of cognitive functioning were slightly below expectation. These were: his speed of information processing, which was in the “Low Average” range; and delayed visual recall, which was marginally below expectation on one task and fundamentally intact on another. While Mr Palmer’s head injuries may have made a contribution, his neuropsychological profile probably reflects a combination of developmental language issues, personality issues, depression, pain, and drug and alcohol use. His presentation appeared more consistent with a personality disorder than with PTSD. Mr Palmer’s cognitive ability will not be an obstacle to paid employment, providing his literacy levels are taken into account and he is not placed under time pressure. (His physical difficulties, would, of course, also need to be considered). However, the most salient feature of his presentation related to personality/emotional issues. Mr Palmer’s focus on his belief that he has been repeatedly victimised is likely, regardless of whether or not this belief is correct, to colour this thinking about life in general, and specifically to interfere with his ability to work.” [11] Mr Barnett, for the Respondent, submitted that the appellant’s cognitive ability had been carefully examined by Dr Mitcheson, who had carried out a number of tests. He also referred to the fact that Dr Newburn had accepted that the appellant was capable of employment. [12] Counsel further submitted that the subsequent injury of May 2003 was not significant and not considered so by Dr Newburn. Counsel submitted that having regard to the principles of Ramsay there was no evidence that Dr Friedman’s Assessment Report was flawed. 467.04 (pg) 8 DECISION [13] This appeal is concerned with the correctness or otherwise of the Medical Assessment carried out by Dr Friedman and from which the respondent made its determination that the appellant had attained Vocational Independence in the various work types that Dr Friedman had identified as being within the appellant’s physical capabilities for work of 35 hours or more per week. [14] It was Mr Lake’s principal criticism of Dr Friedman’s Assessment that it took no account of the mental consequences of the appellant’s injuries and of how they may have impacted on the requisite mental requirements needed by the appellant to perform the work tasks of the various work types identified. [15] Dr Friedman had Dr Karen Mitcheson’s Neuropsychological Assessment for reference, as he did have a host of other medical reports, including Dr Newburn’s extensive report of September 1992 and reports from another Neuropsychiatrist, Dr John Collier, of 1998. [16] Even though it seems to be apparent from the way that Dr Friedman has identified the appellant’s injuries that he considered the amputated left foot injury to be the most serious and requiring closest consideration in assessing his physical ability, nevertheless I find that he has noted and taken account of head injuries suffered by the appellant, including the head injury suffered by him in May 2003. [17] Dr Friedman concluded his report by stating as follows: “Colin has a complex mixture of injuries to his back, left leg and brain. Developmental learning deficits have a significant role in his ability to cope with intellectually challenging information. Colin has been frustrated and pessimistic, in part related to depression, which is under reasonable but not perfect control, and to limited prospects of employment for people with multiple injuries in the absence of advanced training in sedentary occupations such as social work.” [18] I have considered the comments made by Dr Newburn in relation to the four work types in contention and find that they are a mix of criticism from both an occupational and medical perspective. The major criticism seems to be associated with perceived language difficulties and thought processes. I find that those matters in fact relate to the appellant’s occupational aptitude for the work types and do not impact 467.04 (pg) 9 on the appellant’s abilities and of being able to sustain the physical demands of the particular work type. Dr Friedman identified that a principally sedentary type of work would be best suited for the appellant and these are the work types that are best suited from that perspective. [19] The Occupational Assessor has identified the appellant’s range of skills and abilities and has determined that he does have the ability, from an occupational perspective, to carry out the various tasks to the levels that are required. I note that the opinion of Dr Mitcheson is to the effect that the appellant has average abilities. Furthermore, Dr Newburn himself identified that there was no impediment to the appellant taking employment. [20] I find that when one is considering cognitive impairment arising from brain injury, as has been assessed of this appellant, it falls to the Occupational Assessor to identify what the claimant’s intellectual abilities are and how the claimant can meet the intellectual requirements of each work type. I find that the Occupational Assessor has done just that, and in those circumstances it does not fall to a person such as Dr Newburn to state from an injury perspective that a claimant does not have the ability to do that particular type of work. [21] Dr Newburn’s field is to identify whether there is any mental injury arising but is for an expert in Occupational Assessment to determine to what extent, if any, any cognitive limitations impact on the appellant’s suitability for the work types proposed. [22] Having said that, I do nevertheless identify that if an appropriately qualified medical expert can establish that a claimant would not have the cognitive abilities, by reason of personal injury, to perform the intellectual tasks required of any particular work type, then that opinion could rightly be set against the opinion of the Occupational Assessor and a judgement call made accordingly. [23] In the present case, the situation as I find it, is that Dr Newburn has used his own notions of what might be entailed in the particular work types from a knowledge or intellectual perspective and then given his opinion on the appellant’s abilities to meet those requirements. I find that such is only an alternative opinion and does not go to the efficacy of the Occupational Assessment. [24] Despite the comments I have made above regarding the efficacy of Dr Friedman’s Assessment, nevertheless I find, on the face of it, that his assessment of 467.04 (pg) 10 the appellant being able to carry out the functions and activities of a Tour and Travel Guide cannot be sustained. Dr Friedman has in fact misconstrued the functions and activities of that work type. His comment on that work type states as follows: “The work details sheet indicates that this can range from sedentary to medium work. There is no injury related medical reason to prevent Colin from working 35 or more hours per week in light to sedentary jobs as a tour guide in a museum, visitor centre or an information desk. Colin does not believe that most employers would be flexible enough to accommodate his need to alternate between sitting and standing.” [25] When his comments are matched to the Work Details Sheet provided by the Occupational Assessor, it is to be noted that the description of the work type is – “Escorts groups of sightseers within or to places of historical or general interest. Escorts groups travelling by bus, ship, or other means over a planned route.” The work tasks are further explained as follows: “Points out places or items of interest giving a brief commentary on each; Assists with travel arrangements such as visas, passports and health certificates; Makes arrangements for meals and accommodation en route; Plans, or assists tourists to plan individual sightseeing trips en route; May act as interpreter, may drive motor vehicle.” When one reads that narrative one finds it difficult to identify the work type in its generic form as being a Tour Guide in a Museum, Visitor Centre or Information Desk of a sedentary nature. Dr Friedman has got this notion from another entry in the Details Sheet that indicates that a specialisation of it may be “Art Gallery, Museum or Sightseeing Tour Guide/Attendant or Controller”. [26] I find that Dr Friedman’s Medical Assessment only goes to consider the appellant’s ability to be a Tour Guide in a Museum, Visitor Centre or Information Desk of a sedentary nature rather than the full range of duties required of a Tour and Travel Guide as stated. For this reason his approval of that work type cannot be sustained. [27] In the course of his written and oral submissions, Mr Lake referred to a number of decisions of this Court in the Work Capacity field. I have considered those decisions, but I find it to be the case that each case has its own special set of facts and that those decisions were made on their own special facts and are not indicative of broad principle, although those decisions may well have noted and considered the 467.04 (pg) 11 broad principles enunciated in cases such as Ramsay (High Court, Dunedin, 18412/14/02). [28] On a final note, I would indicate that I noted the medical report of Dr John Hancock, a Pain Specialist. I find he is quite outside his field of expertise when he seeks to comment on the work types under consideration. There is no suggestion that pain is a constant problem for the appellant or that it is an inhibiting factor. Dr Hancock purports to give his opinion of the appellant’s mental abilities and also gives his own notions of what some of the work types may involve from a mental activity perspective. I find that his opinion can be given little weight as it is given on the matters outside his field of expertise. [29] For the foregoing reasons, therefore, I find that the respondent was correct to identify that the appellant had attained Vocational Independence in three work types, namely Radio and/or Television Presenter, Diversional Therapist, and Broadcasting Transmitting and Studio Equipment Operator. [30] Even though the work types have been slowly whittled down from the number which were contained in the Respondent’s primary decision, nevertheless the law requires that the appellant be only identified as having attained Vocational Independence in one work type. Therefore the fact that some work types have been removed does not alter the basic correctness of the Respondent’s decision. This appeal is therefore dismissed. DATED at AUCKLAND this 3rd day of August 2005 M J Beattie District Court Judge 467.04 (pg)