Jones v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 195 /2008 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 IN THE MATTER of an appeal pursuant to section 149 of the Act BETWEEN CRAIG JONES Appellant (Appeal No. AI 245/05) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING: at AUCKLAND on 14 May 2008 APPEARANCES: Mr C Jones in person. Mr D Tui for respondent. RESERVED DECISION OF JUDGE J CADENHEAD ISSUE [1] At issue is a decision by the Accident Compensation Corporation ("the Corporation") dated 17 January 2005 determining that the appellant has a vocational independence in seven job options, namely: [a] Cashier [b] Ticket Seller [c] Costing Clerk IJUDICIAL\CADENHJ\ACC\ Reserved decision - C Jones 245.05 [d] Record and Filing Clerk [e] Data Entry Operator [f] Survey Interviewer [g] Telephone and Switchboard Operator [2] The appellant contends that his rehabilitation has not been completed; in particular a work trial had not been arranged for the appellant. The appellant submits that medically he is incapable of working 35 hours or more in the seven job options and that he requires a graduated return to work as indicated by Mr Gavin Farr, orthopaedic surgeon. [3] On the other hand it is submitted that the Corporation provided sufficient rehabilitation for the appellant to assist with his readiness, physically, to return to work. The appellant received an activity-based programme and physiotherapy and that his rehabilitation is complete. BACKGROUND [4] I substantially set out the background of facts provided by the respondent, because on a reading of the file it seems accurate and reliable. [5] The appellant lodged a claim for cover in April 1992 for a back injury sustained on 13 April 1992. The appellant was then a postal assistant aged 26 years. According to the Cl Advice of Injury form, the appellant suffered his injury whilst "lifting bags and strain my back". [6] The appellant received entitlements, including lump sum awards and weekly compensation. Vocational rehabilitation was provided to the appellant over the subsequent years. [7] In May 1997 the appellant was assessed by a multi-disciplinary team of specialists, including an orthopaedic surgeon (Mr Ross Nicholson) and rheumatologist (Dr Michael Corkill). On the basis of the results of the assessments, the Corporation wrote to Mr G R C Howie, spinal surgeon (at the request of the 2 appellant for a second opinion) seeking his comment on the Corporation's proposal to provide the following rehabilitation programme for the appellant: [a] Pain management, education and exercise programme; [b] Work hardening programme; [c] Career counselling and job placement assistance; and [d] Counselling with a psychologist. [8] In 1998 the Corporation referred the appellant to AIT Rehabilitation Centre and Career Dynamics to receive the said rehabilitation interventions. [9] Following the rehabilitation, the appellant was assessed to ascertain his capacity for work. The medical assessment was undertaken by Dr Evan Dryson, occupational medical specialist, on 11 December 1998. Dr Dryson opined that the appellant had a capacity for work in two job options. [10] A primary decision was issued by the Corporation on 6 January 1999 determining that the appellant had a capacity for work. [11] The appellant applied for a review from the Corporation's decision. A review hearing was conducted on 19 May 1999. A decision was issued by the review officer on 15 June 1999 dismissing the application. [12] There followed an appeal and a decision by the District Court on 7 December 1999 dismissing the same. [13] In November/December 2000, the appellant applied for backdated weekly compensation. The Corporation investigated the same, seeking medical records from the appellant's then general practitioner, Dr Lockwood. The Corporation also sought, and obtained, medical records from Mr Michael Barnes, orthopaedic surgeon, who had been treating the appellant. Mr Barnes had operated on the appellant's back on 22 June 2000. [14] In response to a request by the Corporation, Mr Barnes responded on 1 March 2001 advising, inter alia: I then reviewed him [ the appellant] at the request of his GP in April 2000 because he had developed left sided sciatica over the preceding three weeks. This time frame would be consistent with a further injury to his back in February to a disc with progression to a disc prolapse The appearances at surgery, namely a partially sequestrated LS/SI disc prolapse tenting the SI nerve root were entirely consistent with a recent disc prolapse, [15] On 9 March 2001 the Corporation issued a decision determining that the injury sustained in February 2000 was a new injury and that as the appellant was not an earner immediately prior to February 2000 (he was then receiving a sickness benefit) the appellant was not entitled to weekly compensation. [16] The appellant applied for a review from the Corporation's decision. A further report from Mr Barnes, dated 1 1 April 2001, was obtained in support of the review. [17] A review hearing was conducted on 8 June 2001. The reviewer issued a decision on 25 June 2001 quashing the Corporation's decision, determining that the injury in February 2000 was an exacerbation of the 1992 injury and not a new injury. As such, the reviewer directed the Corporation to reassess the appellant's capacity for work on the basis that there had been a deterioration of the appellant's capacity for work from February 2000. [18] The Corporation subsequently arranged for an occupational and medical assessment to be undertaken. [19] Marea Brown, from Taskmaster Training Lid, undertook the occupational assessment on 31 July 2001. [20] Dr Siobhan Gavaghan, occupational medical specialist, undertook the medical assessment. Dr Gavaghan prepared reports on 13 September and 27 September 2001. Dr Gavaghan opined that the symptoms from February 2000 were such that the appellant would not then have had a capacity for work but that by the time of the medical assessment in September 2001, the appellant had a capacity for work in six job options. [21] The Corporation issued a primary decision on 28 September 2001 determining that the appellant was entitled to reinstatement of his weekly compensation from 20 February 2000 but that on the basis of Dr Gavaghan's assessment the appellant then had a capacity for work; as such his weekly compensation would be ceased in three months, on 27 December 2001. 4 [22] An application for review form was completed on 19 October 2001 on behalf of the appellant. The review was brought from the Corporation's decision of 28 September 2001. The appellant obtained a report from Dr John Hancock, dated 21 November 2001, in support of the review. The Corporation obtained a response from Dr Gavaghan dated 20 December 2001. [23] A review hearing was conducted on 17 January 2002. A further report from Dr Hancock, dated 23 January 2002, was subsequently filed. [24] The reviewer issued a decision on 8 February 2002, quashing the Corporation's decision. The reviewer determined, as a matter of law, that the Corporation could not as part of its reassessment of the appellant's capacity for work, determine both an entitlement to weekly compensation and a cessation arising from the same assessment. The reviewer determined that once the Corporation had determined that there was no longer a capacity for work, entitlements were required to be reinstated and the appellant's rehabilitation recommenced. [25] The appellant was subsequently referred for an Initial Occupational Assessment ("IOA") and an Initial Medical Assessment ("IMA"). Later the same year, the appellant received assistance with an activity-based programme and a work preparation programme. [26] The appellant was referred for a further IOA and IMA in mid to late 2003. The IOA was undertaken by Leigh Cowden from Taskmaster on 1 August 2003. Ms Cowden noted that the appellant had been working as a film extra and had undertaken acting classes. [27] Dr Chris Walls undertook the IMA on 15 September 2003. [28] The appellant's IRP was updated in October 2003 and there followed a referral for an activity-based programme as well as vocational assistance from Alpha Consultants. The activity based programme included funding for membership at a gym/pool. 29] There was a further referral for a work preparation programme with Focus on Jobs in September 2004 and computer training assistance in December 2004. (30] The appellant's IRP was updated and modified from time to time to reflect the changes and progress made with the appellant's rehabilitation. [31] In January 2005 the appellant was considered ready to be assessed for his vocational independence. [32] The Vocational Independence Occupational Assessment ("VIOA") w undertaken on 17 January 2005 by Verity Masson from Focus on Jobs. Ms Masson assessed the appellant as being suited to undertake work in 16 job options. [33] The Vocational Independence Medical Assessment ("VIMA") was undertaken by Dr David Scott on 26 January 2005. Dr Scott opined that the appellant had a vocational independence in eight job options, being the seven listed in paragraph 1.1 hereof as well as that of "actor". [34] The Corporation issued a decision on 17 February 2005 determining that the appellant had a vocational independence in the said seven job options. [35] An application for review form was completed on 24 February 2005. Reports from Dr Hancock and Mr Farr, dated 19 March 2005 and 29 March 2005 respectively, were obtained in support of the review. THE CONDUCT OF THE REVIEW HEARING [36] Section 140 of the legislation provides: 140 Conduct of review: general principles The reviewer may conduct the review in any manner he or she thinks fit, but he or she must- (a) comply with section 138, and (b) comply with any other relevant provision of this Act and any regulations made under this Act; and c) comply with the principles of natural justice; and (d) exercise due diligence in decision-making; and adopt an investigative approach with a view to conducting the review in an informal, timely, and practical manner. 6 [37] Section 145 provides that the review hearing substance should be conducted as follows: 145 Review decisions: substance (1) In making a decision on the review, the reviewer must--- (a) put aside the Corporation's decision and look at the matter afresh on the basis of the information provided at the review; and (b) put aside the policy and procedure followed by the Corporation and decide the matter only on the basis of its substantive merits under this Act. [38] It should be noted that a review officer should adopt an investigative approach put aside the Corporation's decision and look at the matter afresh on the basis of the information provided at the review. [39] In Accident Compensation v Ambros [2008] 1 NZLR 340 Glazebrook J, delivering the decision of the Court, said at paragraph [64]: (64] An important factor that favours the Supreme Court of Canada's approach applying in that context is the essentially inquisitorial role of the Corporation, both when an initial claim is made and in the review function (see Medical Law in New Zealand, para [24. 12]). The inquisitorial approach should generally mean that, to the extent this is practical, all aspects of the claim (including causation) have been investigated by the Corporation before matters reach the courts. If that occurs, the situation in Cochrane v Accident Compensation Corporation (2005] NZAR 193 would be avoided. In that case, the medical evidence at the review stages had not been directed to the legal test of causation, As a consequence, a rehearing was ordered in the District Court. That may unfortunately also be the result in this case (see para [1 13] below). In our view, it is in keeping with the non-adversarial nature of the claim and review process that the Corporation should investigate all possible aspects of a claim, at least in a rudimentary fashion and as far as practicable. It would thus be in a position, once the matter comes before a court, to lead evidence on all points that were investigated, whether strictly obliged to or not. THE REVIEW HEARING [40] The review hearing dated 10 May 2005 dismissed review application. The review hearing commenced on 11 April 2005 and the review hearing the appellant provided further reports from Dr Hancock and Mr Farr. The reviewer properly referred the comments from these additional reports to the medical assessor Dr Scott. [41] Mr Farr had prepared a report for the appellant's general practitioner on 29 March 2005. Mr Farr stated, inter alia, at page 2. 7 He has appealed against earlier decisions by ACC and has a letter from the Ombudsman. He makes the point that in Dr Wall's report there was a recommendation for a work hardening process, building up the hours of work over a period of time as he has not worked consistently since 1992. I would agree with this concept. This man does have a chronic pain problem which is not likely to go away. My recommendations are: He should return again to see Mr Michael Barnes, orthopaedic surgeon, who dealt with his left sided sciatica successfully. He may require a further MRI and may require further surgery including fusion. He has work capacity now and if he can find suitable employment, should return to work. I would agree with the concept that as he has not worked since 1992 he may well need to increase his hours of work over a period of time and is unlikely to succeed if he is cleared to work for 35 hours a week. I would suggest therefore a return to work in graded fashion as a work hardening process. I do not think that any other therapy is likely to be helpful for him. In my opinion, he will need to live with his low back discomfort but his present state of fitness can be improved, particularly in relation to his poor abdominal tone. He has not found attending a gym successful and I would recommend that he walks on a regular basis and attends a pool, perhaps three times a week, and specifically at increasing abdominal tone. The appellant also relied on a report from Dr Hancock, pain specialist, dated 19 March 2005. Dr Hancock opined that the appellant was unable to undertake the said job options as there was constant sitting which he believed would aggravate the appellant's condition. [43] This procedure of referring back to the medical assessor was part of the investigative function of the reviewer and part of the obligation at review to consider the matter afresh, as has been outlined. Dr Scott's final comments were received on 29 April 2005. [44) Dr Scott had an opportunity to consider the reports from Mr Farr and Dr Hancock. In his response of 18 April 2005, Dr Scott stated: I note that Mr Farr( in recommendation 2) states that Craig has work capacity now and should return to work, but suggests a graded return. I also note that Dr Hancock did not note any signs of discomfort during his interview, or when Craig was walking or moving on the examination couch, apart from stiffeness when his neck and lumbar spine was examined. Dr Hancock does not appear to think that Craig could do any of the suggested jobs because of the prolonged sitting involved. In my opinion Craig is still capable of 35 hours or more in the job types previously mentioned for the following reasons: 8 1. In my report of 31/1/05 Craig's self-reported ability to sit (and drive) was in the range of 60-90 minutes. After this he has to stretch and move about. 2. I observed that Craig was able to sit for the entire time of my interview with him and moved easily on and off the examination couch. 3. Mr Farr reports that Craig told him he could sit for 120 minutes and stand for 30 minutes. 1. Dr Hancock notes that Craig would experience increased pain if he sat or drove for a longer period than an hour. 5. Craig is therefore able to sit for at least 60 minutes, then takes a break, which is what most people in a seated occupation do anyway. 5. Most importantly, while all the clerical jobs listed specify frequent to constant sitting or standing, they also have moderate flexibility of movement which means that Craig could get up and stretch or walk when he needed to, just as he no doubt does at home now. [45] It should be noted that the medical assessor, in my view, does not consider or give reasons why he considers that the appellant could work for 35 hours or more without a graduated return to work as suggested by Mr Farr. [46] The reviewer said; However merely holding a different view from that of the professional assessor is not sufficient. The assessor must be shown to have gone beyond the margins of professional discretion and to have come to an unrealistic or plainly unreasonable conclusion. This approach gained approval in Ramsay 122/2002. Dr Scott has considered Mr Farr and Dr Hancock's reports. Dr Scott pointed out that Mr Farr also stated that Mr Jones had a capacity for work, on a graded return basis. Or Scott also noted that, during the assessment, Mr Jones was able to sit for the entire time of his interview. He confirmed Mr Jones' self reporting ability to sit and drive in the range of 60-90 minutes. Although Dr Hancock noted that Mr Jones would experience increased pain if he sat or drove for longer than an hour, Dr Scott believed that, like most people in a seated occupation do, Mr Jones would be able to take a break after that time. When considering Dr Scott's report, I do not believe that the reports of either Mr Farr of Dr Hancock have identified any flaw in this report, such that his report cannot be safely relied on Dr Scott has more than addressed Dr Hancock's reservations about Mr Jones' ability to work 35 hours or more in the identified job options. Mr Farr did not dispute Dr Scott's findings... Therefore, for the above reasons, I find that Mr Jones does have vocational independence. [47] In my view, the reviewer was correct to investigate the matter further by referring the additional medical materials to Dr Scott and considering the issue afresh. LEGISLATION AND LEGAL PRINCIPLES (48] The relevant provisions relating to the assessment of a claimant's vocational independence under the Injury Prevention, Rehabilitation, and Compensation Act 2001 ("the 2001 Act") are contained at ss 107 to 113 of that 2001 Act. [49] Pursuant to s 107(1) the Corporation may determine a claimant's vocational independence where that claimant is in receipt of weekly compensation. Section 1 10(3) further provides that an assessment must not be undertaken: until the claimant has completed any vocational rehabilitation that the Corporation was liable to provide under his or her individual rehabilitation plan. [50] The term 'Vocational Independence' is defined under s 6 as meaning: Vocational Independence, in relation to a claimant, means the claimant's capacity, as determined under section 107, to engage in work- (a) for which he or she is suited by reason of experience, education, or training, or any combination of those things; and (b ) for 35 hours or more a week. [51] Section 108 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 provides: 108. Assessment of claimant's vocational independence (1) An assessment of a claimant's vocational independence must consist of- (a) an occupational assessment under clause 25 of Schedule I, and (b) a medical assessment under clause 28 of Schedule 1. 2) The purpose of an occupational assessment is to- - (Q) consider the progress and outcomes of vocational rehabilitation carried out under the claimant's individual rehabilitation plan; and (b) consider whether the types of work (whether available or not) identified in the claimant's individual rehabilitation plan are still suitable for the claimant because they match the skills that the claimant has gained through education, training, or experience. 10 (3) 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 identified in the occupational assessment and reflected in the claimant's individual rehabilitation plan. [52] Pursuant to s 111, a determination that a claimant has a vocational independence is to be regarded, inter alia, as a determination that that claimant is no longer incapacitated. [53] Section 112 provides that a determination of vocational independence under s 107 results in a claimant losing his or her entitlement to weekly compensation three months after the date upon which that claimant is notified of the determination. [54] In respect to taking away a benefit the remarks of Mallon J in Ellwood v ACC (CIV 2005-485-536 High Court Wellington, 18 December 2006) are pertinent and in that case Her Honour said: (64] In contrast if the test required the ACC/the Reviewer/the District Court "to be satisfied that there is no right to entitlements" then that test would not he met where the evidence was in balance or unclear. They could not be satisfied because the evidence would have left the position unclear. That said, the ACC must make reasonable decisions. In a situation where the evidence is unclear or in balance, is it reasonable to suspend entitlements? In many cases it may not be. Before entitlements are suspended at ACC's initiative for that suspension is upheld by a reviewer or the District Court) ACC should take steps to clarify the position one way or the other. The claimant is not present at the first stage so the obligation must be on ACC at this stage to obtain sufficient evidence. Mr Beck's proposed test of asking whether there is a sufficient basis on which entitlements should be suspended (in effect, terminated) is a reasonable one. If there is an insufficient basis then the test of "is not satisfied" is not met. If there is a sufficient basis then ACC can be "not satisfied" of the right to entitlements. As the reviewer and the District Court apply the same test the same approach should be taken at each stage. [65] I therefore consider that's 116 combined with the requirement in s 62 on ACC to make reasonable decisions requires ACC to have a sufficient basis before terminating benefits. If the position is uncertain then there is not a sufficient basis. The "not satisfied" test is not met in these circumstances The approach must be that it is upon the respondent to show on a balance of probabilities that it had suspended the statutory entitlement as it was not satisfied, on the basis of the information in its possession, that the appellant was entitled to continue to receive the statutory entitlement. [55] In my view, having regard to the above comments by analogy the legal burden of proving vocational independence such that sections 111 and 112 of the Act are triggered rests upon the Corporation. 1 1 THE STATUS OF THE MEDICAL ASSESSOR 57] Clauses 27, 28 and 29 of Schedule 1 provide: 27. Medical assessor A medical assessment must be undertaken by a medical practitioner who is described in subclause (2) or subclause (3). (2) A medical practitioner who provides general medical services must also.- (a) have an interest, and proven work experience, in disability management in the workplace or in occupational rehabilitation; and (b) have at least 5 years' experience in general practice; and (c) meet at least I of the following criteria: (i) be a Fellow of the Royal New Zealand College of General Practitioners or hold an equivalent qualification. (ii) be undertaking training towards becoming a Fellow of the Royal New Zealand College of General Practitioners or holding an equivalent qualification: (ili) have undertaken relevant advanced training. (3) A person who does not provide general medical services must also- (a) have an interest, and proven work experience, in disability management in the workplace or in occupational rehabilitation; and (b ) he a member of a recognised college. 28 Conduct of medical assessment (1) A medical assessor undertaking a medical assessment as part of an assessment of a claimant's vocational independence under section 108 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; medical reports requested by the Corporation before the individual rehabilitation plan was prepared: (ii) medical reports received during the claimant's rehabilitation; and (d) the report of the occupational assessor under clause 26; and (e) the medical assessor's clinical examination of the claimant; and 12 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 must provide to a medical assessor all information the Corporation has that is relevant to a medical assessment. 29 Report on medical assessment The medical assessor must prepare and provide to the Corporation a report on the medical assessment specifying (a) relevant details about the claimant, including details of the claimant's injury; and (b) relevant details about the clinical examination of the claimant undertaken by the assessor, including the methods used and the assessor's findings from the examination; and (c) the results of any additional assessments of the claimant's condition; and (d) the assessor's opinion of the claimant's vocational independence in relation to each of the types of work identified in the occupational assessor's report; and (e) any comments made by the claimant to the assessor relating to the claimant's injury and vocational independence in relation to each of the types of work identified in the occupational assessor's report. (2) The report must also identify any conditions that (4) prevent the claimant from having vocational independence; and ( b ) are not related to the claimant's injury. (3) The Corporation must provide a copy of the report to the claimant. [58] In Ramsay [ Christchurch Registry, AP 412/14/02, 12 December 2002] the High Court held that the assessments of physicians qualified pursuant to the legislation, will be preferred and acted upon by the Court unless clear and cogent evidence to the contrary by a duly qualified physician can identify a flaw in that assessment. Hansen J held: (52]... Once the respondent determines to require an insured to undergo the process determining capacity for work, it seems to me, on the clear wording of the provision, both parties are bound by that process. The scheme of the Act does not envisage a process where the respondent gathers in evidence and reaches a decision by balancing that evidence. That role is given by the legislation to the medical assessor. The assessment can only be carried out by someone who is entitled to, pursuant to $98. Parliament has determined the proper way for such persons to consider all relevant matters is in terms of $99. They have not provided any other method for assessment, and it is certainly not open on the statutory provisions for the work capacity assessment to be disregarded, because the Court, or the respondent, preferred the contrary opinion of another non-qualified person under $98, who in terms of the legislation, cannot make such an assessment... 13 (53] In my view, 589 does not leave discretion with the insurer to determine capacity after receiving the report from the medical assessor. What it provides is that an insurer can decide to require an insured to be assessed to determine the capacity for work. Once that decision is exercised by the insurer the provisions of the following sections come into play, and all the parties are bound by them. (54] I concur in Mr Havlac's submission [for the respondent] that something more is needed to set aside a determination that an insured has a capacity for work other than an opinion from another medical professional not qualified under $98. What is required is evidence on which the Court, or the respondent, could say the opinion reached was wrong and consequently the insurer's decision was wrong. [59] In short, an evidential onus is conferred upon the medical assessor provided that no flaws are apparent in his assessment. [60] However, before that evidential inference is reached it is necessary that the medical assessor provides clear and cogent reasons for the decision made. This would include reasons for rejecting the views of orthopaedic surgeons and specialist medical practitioners, whose materials provide part of the materials that a medical assessor considers before reaching his decision. The views of those medical experts are of prime importance, as they are the specialists in those areas upon, which they comment. The medical assessors must take into account their views in commenting finally on the issue of vocational independence. If the medical assessor disagrees with the views of the experts in their field clear and cogent reasons should be given in the medical assessment provided. By illustration I refer to: [a] Newewale (Al 259/02) in reference to pain where I said: In this case the appellant submits she was not provided with sufficient reasons dealing with the issue of her pain in the medical report of the assessor, and further, that the medical assessor mistakenly noted down her assent as to her ability to do the specified jobs. It is noted that section 100 provides that the medical report must specify relevant details of the insured, including details of the injury. The report must set out the assessor's findings from the examination and the assessor's opinion of the insured's capacity to work for each of the types of employment specified in the occupational assessor's report. These statutory requirements mirror the procedural fairness need to give adequate and intelligible reasons (Judicial Review of Administrative Action, 5th Edition, De Smith, Wolf and Jowell, para 9-049). The reasons should show that the decision maker has successfully come to grips with main contentions advanced by the parties. The reasons should be sufficiently detailed on the main issues to make it clear to the losing party why the decision was reached and to enable the reasons to be appropriately reviewed. [b] In Park (Al 552/02) Judge Hole on an application for leave to appeal, reflected on the pragmatic approach to this question as follows: 14 Comments made by the learned Judge in Inwood (43/02) and Bidois (318/01) have been contrasted with what is claimed is a different view espoused by His Honour Judge Barber in Kidd (53/04). Upon analysis, the appellant is claiming that Judge Barber thinks that detailed reasons are not required for the medical assessor's opinion whereas Judge Beattie requires them. I disagree with that analysis. While the words are different, each Judge agrees that when giving an opinion on job suitability, information sufficient to justify that opinion is necessary and that information should relate to factors identified as characteristics of that job option by the occupational assessor. The assessment should be sufficient to inform both a claimant and the Corporation how the medical assessor reached his conclusion: however, detailed reasons may not be necessary. [61] The capacity to work procedure is a discrete process that is governed by the above statutory provisions. The position of a medical assessor is of importance in this statutory framework and he is required to consider all the essential prerequisites prescribed by the above sections: Ramsay v Accident Insurance Corporation (High Court, Dunedin; AP 412/14/02; 12 December 2002; John Hansen J). [62] I appreciate that a medical assessor is not a judicial officer, however, in view of the evidential presumption created by Ramsay great care must be taken to see that rational and coherent reasons are given by the medical assessor in reaching a conclusion that would take away a person's entitlement to weekly compensation by a finding of vocational incapacity. In this respect this reasoning follows by analogy from the remarks of Justice Mallon in the first part of her decision in Ellwood (supra). [63] In this appeal the issue is whether the medical assessor gave rational and clear reasons for disagreeing with the medical materials provided by Mr Farr and Dr Hancock that the appellant could not work for 35 hours or more without a graduated return to work. I appreciate that neither of these medical specialists are occupational specialists, but they provide the basis of medical materials that have to be considered by the occupational specialist in arriving at his conclusion. [64] It is not a contest between two occupational specialists, but rather a consideration of the medical materials provided and application of specialist opinion in the final assessment. Indeed, it not for the specialists to find flaws in the occupational specialist's report, but rather for the occupational specialist to provide rational and coherent reasons for not following or rejecting that specialist opinion in the final medical assessment. (65] The case of Ramsay (supra) must be seen in that light. In my view, too often Ramsay has been used as a mantra that can be applied to dispossess claimants of entitlements: at the end of the day the issue is whether the claimant can be said to 15 have been rehabilitated to the extent of reaching vocational independence. The onus upon that issue is upon the respondent. THE SUBMISSIONS OF THE RESPONDENT [66] The appellant contends that his rehabilitation was not complete and that a work trial, agreed to in an carlier IRP, had not been provided by the Corporation. [67] An IRP signed in October 2003 included the following intervention therein: Following completion of the activity-based programme, case manager will refer Craig for a gradual return to work programme, monitored by an occupational therapist, in the area of acting work or if unavailable, one of the other work type options .. (68] The responsibility for this intervention was with both the Corporation and the appellant. It was further agreed in January 2004, as recorded on the IRP, that: ACC to consider referring Craig to a Work Ready Programme with a graduated increase in hours at a work trial to be sourced by the Vocational Provider for 4 to 6 weeks. [69] Alpha Consultants on 26 April 2004. Maeria Koligi advised that negotiations had been undertaken with Rainbows End to secure a work trial and that a work trial interview was arranged for the appellant on 1 April 2004. Ms Koligi further noted that no other work trial offers resulted from their approaches. Ms Koligi described other vocational assistance that was provided to the appellant from Alpha Consultants. Under the heading "General Comments", Ms Koligi stated, inter alia: Unfortunately, Craig was not successful with his work trial application and interview. Apparent, were areas of conflicting detail. Not being personally present at the interview, the view held is that Craig's expectation of this interview was to obtain an ideal job on his terms. In fact, the interview arrangement was that Craig was seeking either a paid or unpaid work trial for a limited period. Pre-interview, there was a high indication a work trial offer was on hand? Craig did not make contact with Alpha immediately after his interview as agreed. In fact, several days had lapsed when he was finally contacted by telephone, resulting in no further opportunity to negotiate. [70) Notwithstanding, an IRP is a living document that is modified and changed from time to time. Simply because an intervention is agreed at one time does not make that intervention a liability for all time. An IRP can be modified, as it was in the present case. As agreed, and recorded on the IRP. on 5 May 2004: 16 In the absence of obtaining a work trial, ACC to consider referring claimant to a WPP programme as part of Voc rehab. Claimant agrees to attend this and has been given a fact sheet on WPP ... [71] The same, a work preparation programme, was provided by Helene Evan from Focus on Jobs. A Completion Report was prepared by Ms Evan on 30 November 2004 detailing the assistance provided to the appellant. [72] As such, at the time the vocational independence process commenced the Corporation had discharged its liabilities under the IRP. [73] It is submitted that the report from Dr Scott is cogent and comprehensive. Dr Scott had all relevant information available to him, as listed at pages 1 to 3 of his report. He proceeded to set out, at page 4, the appellant's self-reported day-to-day restrictions as well as detailed his own findings from clinical examination. Dr Scott stated at page 5: Craig has definitely benefited from the discectomy of 2090, but despite numerous rehabilitation modalities, my perception is that he has not yet developed a positive attitude to returning to work, preferring to hold onto perceived injustices of the past. Nevertheless, in my opinion, Craig is physically capable of sedentary to light work. as detailed below. [74] Dr Scott proceeded, at page 6, to set out the activities and restrictions the appellant was capable of undertaking in the workplace [75] Dr Scott opined at page 7 that the appellant was able to work 35 hours or more per week in the said seven job options. Dr Scott provided sound reasons for each job option to support his opinion. He also recorded, on the earlier page, the appellant's comments. THE SUBMISSIONS OF THE APPELLANT [76] The appellant contends that he is unable to work 35 hours or more and relics on the report from Mr Farr, orthopaedic surgeon, to support the suggestion that a graduated return to work is advisable. He comments, further, that the appellant was unlikely to succeed at work if he was cleared for 35 hours per week. He suggested a return to work in a graded fashion as a work hardening process. 17 CONCLUSION [77] I am of the view that it is not demonstrated that the appellant had vocational independence to the extent of being able to work 35 hours or more. I do not think that the medical assessor coherently dealt with the opinions of Mr Farr or Dr Hancock to that effect. The issue was not whether their opinions conflicted with the opinion of Dr Scott, but whether Dr Scott adequately dealt with their concerns, as part of the medical materials that he was to comment upon. I am of the view that he did not. Additionally, I do not think that the reviewer equally gave adequate reasons for preferring the views of Dr Scott to that of Mr Farr and Dr Hancock in an area that was the field of their expertise. The issue was not whether they had found flaws in the medical assessment, but whether the medical assessor had adequately dealt with their materials in reaching a different conclusion on the issues of the appellant's capacity to work for 35 hours or more, or the need for a graduated return to work. [78] For the reasons that I have given I would allow the appeal and quash the decision of the Corporation as to the appellant having attained vocational independence and he should be restored to his entitlements. [79] As the appellant acted for himself he is entitled to disbursements only. DATED at AUCKLAND this. . 26.the .day of.. .August.2008 J Cadenhead District Court Judge 18