McKenzie v Accident Compensation Corporation

IN THE DISTRICT COURT AT DUNEDIN [2012] NZACC 4 06 AI 275/09 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN CRAIG ELRICK MCKENZIE Appellant Hearing: 4 October 2012 Appearances; P Sara for Mr Mckenzie H Evans for the Corporation Judgment: 20 December 2012 JUDGMENT OF JUDGE RODERICK JOYCE QC Reason for appeal [1] Mr Mckenzie has cover for serious injuries to his left leg suffered in a ride-on lawnmower accident on 27 April 2007. [2] On 4 December 2008 the Corporation issued a determination that Mr Mckenzie had vocational independence in several work types. [3] Mr Mckenzie applied for a review of that determination in terms including that, as he was at that point scheduled for surgery, it was premature, [4] The surgery went ahead on 23 February 2009 and was paid for by the Corporation, At that point Mr Mckenzie was still in receipt of weekly compensation because the "notice" period of three months from the determination of vocational independence had yet to expire. CRAIG ELRICK MCKENZIE DC DUN [2012] NZACC ecember 2012] [5] On 5 March 2009 the Corporation issued a further determination to the effect that weekly compensation payments would be extended to cover another 12 weeks which at that point made for an end date of 17 May 2009. (6] Subsequently a reviewer upheld the Corporation's determination of vocational independence and this appeal has followed. (It will later become apparent just why the case came on for hearing so late in the piece.) Background [7] An 18 September 2008 vocational independence occupational assessment report identified the suitability of four work types being driving instructor, stock clerk, sales representative and forklift operator, [8] The report noted the prior completion of an initial occupational assessment, a pre-employment preparation programme including forklift certification, a work preparation programme and, on 26 August 2008, a functional capacity evaluation. [9] On 16 October 2008 Dr Keith Murray completed a vocational independence medical assessment report, at least that is the date upon which he met and assessed Mr Mckenzie over a period of 50 minutes. Dr Murray noted in his report that: More recently since he has been back on his feet he has had left knee pain, particularly when walking downhill and downstairs, and when he saw his specialist Mr Birks again on 4/8/08 he had some x-rays which showed some mild loss of joint space in the patello-femoral compartment and a knee effusion. He injected some cortisone and local anaesthetic. He says he doesn't really think this helped at all. He is due to have an MRI of his knee on 6/1 1/08 and then will see his specialist again after that. [Emphasis added] [10] Dr Murray went to note that at the time of his injury Mr Mckenzie had been a self employed part-time logging truck driver and was now (i.e. as of October 2008) employed as a driver by a transport operator. He had started this job about four months before and gradually worked up his hours. Still a casual worker, he went in most days and the amount of work available varied. Dr Murray noted Mr Mckenzie as saying that: ... it is ... up to him how much he does and this depends on how he feels and when his leg gets too sore he goes home. He says that after five-six hours he has usually had enough, but it is quite variable. [11] Dr Murray remarked upon the functional capacity evaluation which had been pursued on 26 August 2008. It had concluded that an increase in work hours to 35 per week in the driving job was probably achievable, but that lower limb fatigue, decreased sensation in, and limited dorsi-flexion of, the left foot could impact on his ability to sustain the standing and walking aspects of that job, [12] After identifying (in considerable detail) why he was satisfied that the work types mentioned above were sustainable for 35 or more hours per week Dr Murray had said: He does have ongoing knee and foot pain, and is still seeing his specialist, but in my opinion this does not prevent him having vocational independence currently. If any further surgical procedures are to be undertaken in the future (which I think is unlikely at this stage) then he obviously would require the normal time off work for the procedure and recovery, but again this does not affect his ability to currently sustain the work types indicated above. [13] I note at this point that when Mr Mckenzie went through the initial medical assessment process on 12 January 2008 with Dr lain Bell, he had referred to a deterioration in Mr Mckenzie's symptoms following a more recent tendon transfer procedure and that he had been diagnosed with a combination of both nociceptive and neuropathic pain. On that account Dr Bell observed that: To help clarify time line further it may be worthwhile communicating with Mr Mckenzie's surgeon, Mr Birks. ... [14] He also indicated that physiotherapy was ongoing which was something he "strongly endorsed" as it should help improve range of motion, strength and functional capacity in the lower limb. [15] The Corporation's decision in favour of vocational independence was made on 4 December 2008 and the outcome conveyed to Mr Mckenzie in a letter of that date. Mr Mckenzie's case manager had forewarned him of the decision that day and the case manager's file note of their discussion includes this: Craig said he is likely to have further surgery on his knee, and later his foot, he is seeing the specialist at the end of January to discuss this. I advised that treatment is still covered and we would pay w/c after the surgery for a period as long as it takes for him to be fit for the jobs identifiable as sustainable in the VIMA. ... (While the Court accepts that at this point the Corporation had the seeming support of Dr Murray for its decision, it wonders aloud why it did not pause to consult Mr Birks who by then would have had the MRI mentioned by Dr Murray. Given what Mr Birks had in hand by the decision date and could have told the Corporation before then (see what shortly follows) that was unfortunate. [16] The file note goes on to record that Mr Mckenzie had told the officer that he did not think it appropriate for the Corporation to stop his weekly compensation - ... while he is still getting surgery ... [17] I have also seen an 8 December 2008 file note in which the case manager records a telephone call from Mr Mckenzie (by then in receipt of the decision) which includes that; He said he disagrees with the decision that says he can work more than 35 hours in any job, because his leg still requires a lot of work and he needs further surgery on both his knee and his foot after that - he may still lose his foot in the future ... ... he feels the decision is premature, and he thinks his specialist would agree with this, I advised that I will write to his specialist with a copy of the VIMA and ask his opinion re whether he can work more than 35 hours in any of the jobs, and also to query what surgeries are likely to be required and when. In the meantime I suggested Craig lodge his review so it can get into the system, should ACC's decision remain unchanged. [18] True to her word (but of course with the decision already made) the case manager now wrote to Mr Birks on 1 1 December 2008 outlining where matters stood so far as the Corporation was concerned and including a copy of the VIMA of Dr Murray. [19] The officer asked Mr Birks to review that and advise if he had any comments and also whether; [a] He agreed that Mr Mckenzie could currently sustain 35 hours per week in the work types identified; and whether [b] He was definitely due for more surgery in the future - in each case the request being for detail. [20] It in fact was the case that as early as 2 December 2008 Mr Birks had completed an ARTP but for some reason, so I was told, this did not reach the Corporation until 19 December 2008. [21] Against the heading "causal medical link between proposed treatment and covered injury" Mr Birks had written: Craig has ongoing anterior knee pain following his crush injury and compound wounds to his left leg. This is currently his major problem. Pain is made worse by walking down hills and when he is cramped up for a prolonged period of time, It is associated with a painful click and is keeping him awake at night on occasions. It is associated with mild swelling. Craig has worked very hard with physiotherapy to strengthen his knee quadriceps and VMO but unfortunately he has ongoing symptoms. I have inject (sic) his knee and he had some improvement with this but it is not lasting. Prior to his injury he did not have any problems and has not had surgery on this knee in the past ... the ARTP shortly continues in reference to "clinical examination"; His examination findings are as reported in August and again in September 2008'. [22] Then against the heading "diagnostic tests and imaging" appears this: His imaging confirms an area of bone bruising in the lower pole of the patella with articular cartilage changes. And next and as to "specific diagnosis"; Anterior knee pain secondary to chondromalicial injury under surface of patella and lateral tightness due to scarring. It is unclear whether these were reports to the Corporation or the GP. The Court cannot tell as they were not in evidence, [23] The ARTP also include the observation that it would take a significant period of time to rehabilitate from the surgery - approximately three months - and that the surgeon would be: Aiming to get him back to his work activities by approximately six to twelve weeks depending on his progress post operatively. [24] Mr Birks saw Mr Mckenzie again on 28 January 2009 thereafter reporting that He has reminded me that he struggles even with sedentary activities because he cannot sit for longer than 20 to 25 minutes and has to move around to help his neuropathic pain. Craig is still significantly troubled with his neuropathic pain and is willing to consider a further review with the pain team as I think he could benefit significantly from medical management of this. I will ask his case manager to consider funding further review by Dr Anderson, for a further review of this. ... [25] On the same day Mr Birks wrote to Mr Mckenzie's case manager - this in belated response to her letter to him of 1 1 December 2008 - saying: I have read Dr Murray's report, it is very comprehensive. In answer to your questions, I agree that Craig does have long term disability. Currently he is managing 20 to 30 hours a week in his current job, It is probably unlikely that he will be able to increase this to 35 hours given the heavy nature of the work. In essence I agree that in a more sedentary job Craig would be likely to be able to increase his hours and the occupations outlined in Dr Murray's report appear to be sensible. There is however a problem with Craig, even with sedentary work he does need to move his foot around as it becomes uncomfortable after approximately 15 to 20 minutes and this may always limit him somewhat As per my recent clinical note Craig is limited by his left knee problems. MRI scanning has confirmed a lesion in the patello-femoral joint. I have offered him arthroscopy and debridement of this lesion, +/- a lateral release to try and help his pain. I have explained to Craig that the recovery from arthroscopy and lateral release on the patello-femoral joint is often prolonged and I would anticipate at least three months probably six months off his current work, given his current employment, while he rehabilitates his knee. ... (Emphasis added) [26] On 23 February 2009 Mr Birks operated on Mr Mckenzie and the Corporation wrote to him on 5 March (the day following the expiry of the weekly compensation leeway provided for by the 4 December 2008 determination) to advise that the Corporation was able to continue to pay weekly compensation for 12 weeks post surgery until 17 May 2009 subject to medical certificates. [27] Mr Mckenzie's review application in respect of the 4 December 2008 determination of vocational independence was heard on 7 April 2009 and dismissed on 5 May in terms including the reviewer observing that; It is ... unfortunate that Mr Mckenzie needed further surgery within three months of ACC's finding of vocational independence. However ., Dr Murray considered the possibility of further surgery in his vocational independence medical assessment report. He did not consider the possibility a future surgery precluded a finding of vocational independence. Also the treating surgeon did not disagree with Dr Murray. I accept Mr Mckenzie's argument that realistically the scheduled surgery prevented him from gaining further employment during the three month period following the finding of vocational independence. This alone however is not enough to overturn the finding of vocational independence. ... [28] On 23 June 2009 Mr Sara wrote to Mr Birks requesting his opinion on the issue of whether, as at 4 December 2008, Mr Mckenzie was able medically to sustain all the physical requirements of the job types identified by Mr Murray and whether as at 5 March 2009 he was medically fit to perform those job types taking into account his medical condition as it actually was in December the previous year. 29] Mr Birks replied on 7 July 2009, He first of all advised that he had earlier discussed with Mr Mckenzie the range of jobs. He considered that while it would have done no harm medically to either his knee or his foot and ankle to perform them, it did not appear he would have been able to do so for 35 hours a week because of ongoing pain that was resistant to medical management. This was the very reason why the surgery had been offered - that as a means of possibly alleviating the pain, [30] He went on to say that as of 5 March 2009 Mr Mckenzie was making a satisfactory recovery from the surgery but was nowhere near fully recovered and that as at 18 May 2009 he had been making good progress but stood to benefit from a further six weeks of rehabilitation and work hardening before getting back to full activity. [31] He then turned to the matter of current foot and ankle pain describing the pressure of such as apparently neuropathic in nature and chronic - with Mr Mckenzie at that point under pain specialist management. Of this Mr Birks said: This in large part is as a result of his most recent foot and ankle surgery as he did not have this neuropathic pain prior to his surgery . I have made an application for treatment injury on the basis of this to ACC. I have not heard back from ACC at this point regards this application. For this reason I think Craig will still struggle to do many of the activities outlined in Dr Murray's report as he struggles to do both sedentary and standing and walking activities for prolonged periods of time, Ideally he would have a job where he could move around and then sit down and change position often to relieve his pain and discomfort. It is very hard-to be clear on such a job (from) a very general job description and each job would have to be reviewed on its merits and individualised to Craig's condition. I would hope that some compromise can be arranged as Craig is very keen to work but is limited by his left foot and ankle disability which is likely to be long standing ... [32] On 13 November 2009 Mr Mckenzie's case manager sent a quite lengthy email to Mr Sara in which she now spoke of a pragmatic approach as an alternative to matters proceeding to review hearing - one to involve the Corporation arranging VIOA and VIMA assessments afresh to determine whether or not Mr Mckenzie was indeed vocationally independent, this on the basis that, since the original determination, his condition may have deteriorated. [33] The note mentioned that on 9 September 2009 the Corporation had formally accepted a consequential injury claim for left posterior tibial nerve damage during a split tibialis transfer on 1 November 2007 noting in this respect that; Dr Murray has considered the neuropathic pain caused by this injury in his vocational independence medical assessment, therefore this would still be considered a deterioration assessment, not an assessment to include a new injury. The reference to 'most recent' has the capacity to confuse. As was later recognised by ACC (see [33] below) in cover for a treatment injury terms, Mr Birks was speaking of the 2007 injury. [34] Mr Sara had responded enquiring what the proposals regarding weekly compensation would be in the meantime but the response was that none could be paid, at least not until there had been reassessments. Case for Mr Mckenzie [35] In his oral submissions Mr Sara posed the question "what was the reality on 4 December 2008?", then proposing that it should have been clear that Mr Mckenzie's position was not then stable, that surgery was in the wind. Hence his submission that the determination had been premature. [36] In his written submissions he had put forward the proposition that the Corporation had issued its decision of 4 December 2008 when it already had Mr Birks' ARTP in hand but, as has now been seen, that (per some misadventure) was not the case. [37] In any event, submitted Mr Sara, it very soon became the case that s 109(2) of the Act was applicable - that being the provision that says that the Corporation must determine a claimant's vocational independence again if it has reasonable grounds for believing that the claimant's vocational independence or capacity for work may have deteriorated due to the injuries that were assessed in the previous vocational independence or capacity for work assessment. [38] That submission led back to the contention that the Corporation should not have proceeded with the vocational independence determination in the first place and, having done so, became bound to carry out a full reassessment as "the legislation does not permit the kind of hybrid remedy that ACC has attempted to effect by extending weekly compensation", [39] In short then, his submission was of a clear failure to comply with the statutory requirements with the result that the primary determination should be overturned. In fact, as I ultimately hold, there was no deterioration. Instead it had been the case that, as of 4 December 2008, the Corporation did not have the full picture. Case for Corporation [40] Mr Hunt began with a reference to the oft mentioned observation of Judge Beattie in Marsh* that: [25] It must be remembered that the assessment of the appellant as having attained vocational independence is merely a snapshot in time, meaning that at the time those assessments were carried out, the appellant was assessed as having the occupational and physical ability to carry out the work types identified ... 26] Should it be the case that the appellant's medical condition has deteriorated since that time and that there are now other factors which may arise which impinge upon the appellant's ability to do the tasks involved in those two options, then that is a matter for the respondent to consider afresh in accordance with section 109(2) of the Act. (In response Mr Sara argued that this was not in fact a deterioration case at all but rather one where known (as at 4 December 2008) circumstances amounted to an absence of justification for a finding of vocational independence at the time in question.) [41] Mr Hunt shortly went on to submit that Dr Murray had specifically noted that there was no further treatment or rehabilitation necessary at the point in time that he made his assessment, and that had been the conclusion of Mr Mckenzie's GP as well. Counsel added: Clearly, the appellant did not advise Dr Murray that he anticipated having surgery in the near future otherwise this would have been recorded, and Mr Birks' view of that assessment (the conclusion that the appellant had vocational independence in a number of job types) was consistent with that of Dr Murray. [42] In Mr Hunt's submission the matters ventilated by him in writing in reference to this part of his argument were sufficient to disclose of the appeal, but for the sake of completeness (as he put it) he dealt with what he styled: ... the residual submission to the effect that following the certification of incapacity after the operation on 23 February 2009 the respondent should not have proceeded with the vocational independence decision (by then two and a half months old) but "was then bound to carry out a full reassessment ..." Marsh y ACC [2005] NZACC 167 [43] Here he referred to a letter from the Corporation to Mr Mckenzie of 8 July 2009 (not included in the bundle) identified as conveying this: ... I would like to clarify the process which occurs if a client's condition deteriorates following vocational independence. I feel we haven't talked about this properly yet, given that the focus was previously about issues from your first review application. If a client produces a medical certificate for their injury following vocational independence (e.g. for recurrence of injury, or further surgery), ACC will contact the GP/specialist and ask if they believe the deterioration affects the client's capacity to perform the types of work identified in the vocational independence assessment. If the GP/specialist says this is the case, the client would undergo a further vocational independence occupational and medical assessment to verify this, If the vocational independence medical assessment review determines the client no longer has vocational independence, then weekly compensation is able to be reinstated. Our policy states that ACC must not reinstate weekly compensation until further occupational and medical assessments determine the client has lost their vocational independence. However because you are having (sic) surgery to your knee, ACC took it for granted that your condition would deteriorate in the short form after the operation, and reinstated weekly compensation without following the above process ACC's policy states that the weekly compensation entitlement is limited to the period from surgery until the expected date of recovery from surgery. This date is determined firstly by the Medical Disability Advisory (MDA), or as recommended by the treating specialist prior to the surgery date. The MDA recommended 56 days, and Mr Birks recommended three months, We agreed to reinstate weekly compensation for the longer period of three months. The recommended timeframe of three months has expired, and it would be expected that surgery would have improved your condition, rather than cause you to deteriorate, However, if you feel your condition still deteriorated after three months of recovery, and if you feel you no longer have vocational independence, you can apply to have your deterioration assessed. I would then need to follow the processes described above ... [44] Mr Hunt had obviously set out the detail of this letter as one relevant to his reliance on Marfell , he drawing particularly attention to these extracts from that judgment: [18] The scheme of the vocational independence provisions is for a decision to be made following two assessments, and for the question of deterioration to be addressed in the same way, that is to say by a Marfell v ACC [2010] NZACC 195 process of two assessments followed by a decision. As a result, there is no prescribed method of promptly addressing a deterioration preventing a claimant from working while disentitled from weekly compensation by an assessment of vocational independence Incapacity from an earlier injury may occur suddenly or catastrophically. If there is a clear and urgent need, it might be possible for the required assessments to be accelerated, but in practice urgent assessments would be exceptional. [19] Mr Mackenzie for the respondent advises that the Corporation's practice is to make discretionary payments to tide over a claimant, The policy and legislative authority for those payments has not beer considered in the course of this appeal. Mr Wadsworth submitted that such payments are a means of avoiding an assessment of loss of vocational independence and that they are not authorised by the Act. [25] ... section 112 states that the claimant loses her entitlement to weekly compensation . That is reinforced by section 100(3) which states that a claimant may lose his or her entitlement to weekly compensation through the operation of sections 103 to 112. The vocationally independent claimant is worse off than a new claimant. There is no provision for relief from loss of weekly compensation until a new vocational independence assessment is done after possible deterioration. There is no middle course, The provision for entitlement to weekly compensation to be assessed retrospectively applies only in cases where the entitlement is regained at the time of assessment. The entitlement can then be backdated, But it does not apply where the claimant is found still to be vocationally independent. (26] In the present case, the appellant became vocationally independent with the result that her entitlement to weekly compensation was lost on 30 April 2009. By that time she had been certified unfit to work. The certificate referred to "any duties" but was not addressed specifically to the work types that had been found suitable in the vocational independence medical assessment. Despite being unfit for work, she remained disentitled to weekly compensation. On 13 August when her had had improved, she was examined and found medically fit for suitable job types. She therefore remained vocationally independent and disentitled from weekly compensation while her hand deteriorated further, resulting in further hand surgery on 9 November, [27] This loss of entitlement would appear at first sight to be contrary to the purposes of the Act, but under section 3, the only reference to the purpose of fair compensation is during rehabilitation, in section 3(d); [p] Ensuring that, during the rehabilitation, claimants receive fair compensation for loss from injury, including fair determination Upon determination of vocational independence of weekly compensation and, where appropriate, lump sums for permanent impairment: [28] Under section 107, assessment of vocational independence occurs after comprehensive vocational rehabilitation has been completed. Those provisions convey a clear meaning that when eligibility for weekly compensation is lost after completing vocational rehabilitation, the only avenue for regaining eligibility is through loss of vocational independence. The Act does not provide for weekly compensation for incapacity while a claimant is vocationally independent. [45] The closing submissions of Mr Hunt then came down to these: The policy applied in actually paying weekly compensation for a period or periods in 2009 may have been ultra vires but that was not the point for - At issue was the substantive challenge to the Corporation's decision of 4 December 2008 as being premature; but The evidence showed that the decision, although communicated on 4 December 2008, reflected an assessment completed six or so weeks before'; and It was also the case that it was not until two weeks after the decision that the surgery request was made; so that In those circumstances the vocational independence decision was not premature nor had it been shown to have been incorrect. Discussion [46] In this case (necessarily determined of course on the basis of the materials actually put before the Court) it would appear that when he did the initial medical assessment back in January 2008 Dr Bell had signalled the importance of But the position cannot thus be avoided that the decision's 'snapshot in time' must be the one taken, metaphorically speaking, on the decision date communication with Mr Mckenzie's surgeon, Mr Birks. But, so far as the Court knows, there was no particular follow up. [47] Come 16 October that year, when Dr Murray completed the VIMA, he had obviously been told by Mr Mckenzie that he (Mr Mckenzie) was due to have an MRI early the following month, in fact on 6 November 2008, after which he would be seeing Mr Birks again. [48] Dr Murray also recognised that Mr Mckenzie was having ongoing knee and foot pain. Certainly his opinion was that this did not stand in the way of vocational independence "currently", but why he should have thought that it was unlikely that there would be any further surgical procedures at that stage is not explained. [49] Here, I recognise, so far as the Corporation is concerned, that it was following the statutory process of reports requisite for vocational independence purposes collection. But given the reference to the MRI and so on, I find it odd, if not extraordinary, that in this particular case no one appears even to have spoken to Mr Birks before the vocational independence process was taken to purported fruition. [50] It is in fact surely clear from the chronology that, had immediately prior to the issue of the 4 December 2008 determination, there been a check with Mr Birks it would have come crystal clear that Mr Mckenzie needed surgery then - that in fact an ARTP had already been prepared. And that surgery was to be purposive in senses including the potential to ensure that Mr Mckenzie would be enabled consistently to work a full week. [51] The Corporation was on notice from Mr Mckenzie on the very day that the decision was to be issued (and before it in fact did) that he was as of then likely to have further surgery on his knee and later his foot and was seeing the specialist (obviously Mr Birks) at the end of January to discuss this. [52] I cannot conceive that, had Dr Murray been made aware of this state of affairs, he would nevertheless have stood by his support for vocational independence. [53] It then of course turned out (and I do not suggest that the Corporation should have foreseen this in December 2008) that latterly other pain problems (which tracked back to surgery in November 2007) became the more obvious, [54] It is true, and thus oft times said, that the case law in this Court speaks of a vocational independence decision as one relating to a 'snapshot in time'. But that colourful expression cannot be permitted to camouflage the fact that an objectively obvious at snapshot time line of enquiry (such as, acting reasonably and sensibly, the Corporation should have pursued with Mr Birks) was not followed, Enquiry could, and in my estimation should, have been made of him. [55] I fully appreciate that when in February 2009 Mr Birks responded to the Corporation's late (i.e, made 4 days after it had made its decision) enquiry of him, he expressed his agreement with Dr Murray that in a more sedentary job Mr Mckenzie would be likely to be able to increase his hours and the occupations outlined in Dr Murray's report appeared to be sensible. [56] But he then - in the very next sentence - went on to qualify that to a degree: and in any event shortly to explain what was involved in the then impending surgery and rehabilitation from that. [57] This case is not identifiable as one where a proper snapshot was followed by a deterioration. It is one where, most unfortunately, the Corporation acted in a blinkered way and in doing so failed to make proper in the particular circumstances enquiries before issuing its 4 December 2008 determination. [58] It is plain that had those enquiries been made (enquiries obviously of Mr Birks) the reality of the immediate need for (and purpose of) surgery would have been revealed and given that revelation, the Corporation would surely not (because it would not have been reasonable to) have made the decision that it did. [59] The fact that in the way matters chronologically developed it may for the most part have ended up the case that Mr Mckenzie came to be in receipt of weekly compensation anyway cannot in some de facto fashion render the 4 December 2008 decision right. Result [60] The appeal is accordingly allowed. Thus the review decision of 5 May 2009 is quashed. The 4 December 2008 determination of the Corporation then falls to the wayside, [61] It now behoves the Corporation to re-examine Mr Mckenzie's case in light of this Court's determination so as to identify the entitlements that he has missed out on in the meantime and for it then to ensure that the gaps are filled. Costs [62] I am sure that Mr Sara and Mr Hunt will be able to agree a reasonable contribution to Mr Mckenzie's costs but should that not prove so then the Court will fix them, Rodunk Roderick Joyce QC District Court Judge Al 275-09.doc (aw)