Jones v Accident Rehabilitation and Compensation Insurance Corporation

Decision No 358/ 99 IN THE DISTRICT COURT AINo. 17/99 AT WELLINGTON UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN CRAIG RICHARD JONES Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent Heard at Auckland: 11 November 1999 Date of Judgment: 7 December 1999 Counsel: Mr S.I. Perese for appellant D. Fotiades for respondent RESERVED JUDGMENT OF JUDGE G.V. HUBBLE This appeal is against a Review Officer's decision of 15 June 1999 confirming the Corporation' decision to cease weekly compensation to the appellant on the basis that he then had capacity for work under s.51 and accordingly, pursuant to s.49, compensation ceased three months from the date of the decision. Background: The appellant suffered a back injury on 13 April 1992 whilst lifting a heavy mail bag. He was employed at the time by New Zealand Post as an assistant in the mail [I: JUDICIAL\Hubblej\Jones.doc jab] 2. sorting room. This occurred on the appellant's first day back at work after a previous back injury in the work place. He applied for and received weekly compensation as from 14 April 1992. The appellant was subsequently referred to Mr G. Howie, Spinal Surgeon, and his report of 4 June 1992 concluded that the appellant "Is likely to have a bulging lumbar sacral disc" but noted that in the absence of significant neurological signs, surgery was unlikely to be beneficial. He was referred to the Auckland Back Rehabilitation Centre. What then began was a period of six years of multiple assessments by medical specialists, modification of programmes and arguments about capacity for work. The appellant was referred to Career Dynamics, Work Bridge, Job Connection and AIT. Among the specialists he saw over this period were Mr Nicholson, Mr Howie, Mr Wong, Dr Corkill and Dr Hickey. There appears to have been some degree of non-cooperation by the appellant evidenced by various comments on the file. For example, in February 1994 it was arranged for him to attend Abilities North Shore for 120 hour work capacity assessment. He had been declared fit for selected work by his general practitioner. A pre-vocational assessment report by Jenny Paine, Occupational Therapist dated 7 June 1994 noted that the appellant had no motivation for the assessment process, and it was concluded that "Attendance at Abilities was too erratic to accurately identify the appellant's physical and psychological readings for work". There were various assessments, referrals and medical reports during 1995 and 1996, and in October 1996 through Job Connections, the appellant began part-time work trial as a sales assistant at Farmers in December 1996. He refused to increase hours at 3. Farmers beyond a four day week, and did not therefore gain permanent employment. Following a further recommendation from the appellant's general practitioner in January 1997 that he was capable of doing a part-time job for four hours a day up to a maximum of five days a week, a full specialist assessment was then conducted on 1 May 1997. This multi-disciplinary specialist review involved no fewer than five specialists. One Orthopaedic Surgeon, Mr O.R. Nicholson, observed that:- "Mr Jones presents as a person with a chronic pain dysfunction syndrome. It is apparent from talking to him that he regards himself as totally incapacitated. As there are three in the family receiving ACC payments for back injuries it is likely there is little encouragement on the home front for him to get back to work. . There are no findings on examination which would indicate that Mr Jones could not return to work should he so desire but he requires to take a much more pro-active approach towards his rehabilitation. By continuing to feel aggrieved because of his inability to sue he is only making matters more difficult for himself." Doctors Corkill, Mr Howie, Carla Airey, an Occupational Therapist, Pam Joan, a Career Consultant and Tony White, a Registered Psychologist, all came to the conclusion that the appellant was capable of some form of light work. The Corporation then set about to apply a rehabilitation plan involving pain management, career counselling and vocational rehabilitation. The appellant was of the view that the only specialist he trusted was Mr Howie, and accordingly a further report was sought from him, and following an appointment on 23 January 1998 Mr Howie reported:- 4. "As I pointed out to (the appellant), the rehabilitation programme offered on 5 December 1997 is appropriate and generous. With appropriate training I see no reason why he will not be able to be rehabilitated into the work force." The first deadline to implement the programme was fixed as February to April 1998. There was a lack of co-operation by the appellant. By letter dated 13 March 1998, the AIT Rehabilitation Centre advised the Corporation that clinicians at AIT did not consider that the appellant would be an appropriate participate in the Wellness Programme due to concerns about his attendance, his punctuality and his negativity. Further consultations and reports followed, and a second deadline was set for completion of the programme by 21 August 1998 under threat of applying work capacity procedures. The Work Bridge report of 13 August states that the appellant did not complete the job seeking task that was set for him, and thus by the end of November 1998 he had still not obtained employment, and had not undertaken his own job search programme as required under the rehabilitation plan dated 21 May 1998. In November 1998, the Corporation commenced its work capacity assessment procedures under s.50 and 51 of the Act. This included an assessment as to whether the appellant met the general criteria for the assessment to proceed, the opinion of his general practitioner, his own comments, an occupational assessment 5. by an occupational therapist, an assessment of educational standards and abilities, and the opinion of medical specialists. All this culminated in the opinion expressed by Dr Dryson that the appellant had no injury related medical condition which prevented him from working as a sales assistant or teacher aid. Following this, the Corporation determined that occupational and medical assessments showed that the appellant had demonstrated capacity to work, and that there was no further treatment options, and further that rehabilitation was complete. On 6 January, a formal decision was made to cease weekly compensation as from 6 April 1999. An administrative review in February confirmed this decision, and a formal review initially on 19 May 1999, and after further evidence on 15 June 1999, confirmed the Corporation's decision. It is against that decision this appeal is made. The question now to be resolved is "Does the appellant satisfy the 'capacity to work test' pursuant to s.51(2)?" The law: The appellant would be entitled to weekly compensation if he was able to establish that he was incapacitated pursuant to s.37A or 37B of the 1992 Act. 6 . Notwithstanding any such entitlement under s.37A or 37B, the Corporation may cease a claimant's entitlement to weekly compensation if that claimant has been assessed under s.51 of the 1992 Act as having capacity for work. Capacity for work is defined under s.51(2) as:- "The person's capacity to engage in work for which the person is suited by reason of experience, education or training or any combination of these things and that capacity shall be determined having regard to the consequences of the person's personal injury." Section 50 sets out the steps that the Corporation must take when developing or amending the procedure for assessing a claimant's capacity for work. The Corporation has over the years produced what is calls the "Final Version" and relies upon this as the "Bible" for its system in making assessments. If the appellant is to continue to receive weekly payments he must establish an incapacity which is the direct result of the personal injury suffered. The assessment cannot be affected by other physical or psychological shortcomings which are not referable to the accident. It is also immaterial that there may not be any jobs out there. In that event the appellant, if he has capacity, should be entitled to an unemployment benefit. In the case of Ronald Kenyon v ACC (278/99) Judge Beattie in assessing the meaning of "capacity for work" observed:- 'Capacity for work I find is a different concept from an enquiry into whether a person has an ability to secure any particular employment opening which may be available in the marketplace. Rather, it is looking at the issue from a more abstract perspective, from a capability perspective. I find that the provisions of section 50(6)(b) require the meaning of capacity for work to be looked at from that perspective. 7. In other words I find that the assessment procedure is designed to determine whether a person has the knowledge/capability and the physical ability to undertake a particular type of work, when the ingredients and requirements of that work have been identified, whether or not the person so assessed would ever actually be employed in an actual position which might be advertised. This seems to be the logical follow-on from the respondent's obligation to provide rehabilitation and when it is accepted that the vocational rehabilitation process has reached its conclusion, it is assumed that a claimant then has sufficient skills to engage in work and providing the physical capability is there, the capacity will be said to exist. Such a person is then to be considered no different from any other member of the community." In Kenyon's case the claimant had a speech impediment which, it was argued, would be a detracting factor in some of the employment options identified by the occupational assessor. Concerning this, Judge Beattie observed:- "In the case of the appellant it is contended that his speech impediment would always be a detracting factor. Whilst this may possibly be the case, as previously noted, it is not a factor which can be taken into account when assessing whether the appellant has a capacity for work within the meaning ascribed to that phrase in section 51(2) of the Act. Section 50(6)(a)(i) only recognises impediments caused as a consequence of the personal injury. I accept the submission of Mr Galloway, counsel for the respondent, that the capacity for work is not gauged by an assessment of whether the appellant would ever be preferred for a job in the particular field of work that he had been assessed as having capacity. In such circumstances he would simply be unemployed, as opposed to not having a capacity for work." The appellant's case: The appellant argues that despite all the detailed procedures which were followed, there has nevertheless been a breach of the principles of natural justice for three reasons: the first, that there has been a breach of the audi alterem partem principle. Secondly, that there has been a failure by the Corporation to "make a determination" and finally, that there has been a failure to give reasons for the determination. 8 . Breach of the audi alterem partem: The Corporation in a large measure accepted the opinion of Dr Dryson when it came to the conclusion that the appellant did have capacity to work. The appellant however, argues that Dr Dryson did not have before him a file note which is recorded by one Sheryl Leeson of AIT Rehabilitation dated 30 April 1998 which stated as follows:- 'Sheryl feels the next step might be for psychotherapy or something in that line. Craig seems to want to improve but he has certain 'blocks'. Cognitively she doesn't think he is very aware." The appellant therefore argues that the appellant has not been fully heard because this important piece of evidence should lead to yet further reports, this time from a psychotherapist. He argues further that despite Dr Dryson's claim that he has had the advantage of seeing some 20 reports, counsel surmises that he would not have had time to read them properly, because he merely stood in at the last minute for Dr Chris Walls, who was originally intended to see the appellant. It was a conclusion that Dr Dryson had not sufficiently considered the file. He further points out that Dr Dryson makes no reference to the fact that he had spoken to or relied upon any statements by Mr Jones himself. He further argues that Dr Dryson's recommendation should have been put to Mr Jones for his comment i.e. that Mr Jones was capable of 30 hours work per week, and that the failure to carry out all of the above functions was a breach of 9. natural justice contrary to s.51(3)(b) of the Act. I cannot agree with any of these submissions. In the first place, the assessment procedure under s.50 and 51 cannot be looked at in isolation when assessing whether there has been a breach of natural justice. The appellant's position assessed both subjectively and objectively has been exhaustively reviewed over many years. The entire procedure was repeated under the Corporation's "final version" procedure which included obtaining comments from the defendant that he thought he was only capable of 20 hours of work. No other matter of substance has been put forward by the appellant which would warrant a reply from any source. The suggestion that some reliance should be placed on a hearsay file note concerning what someone called Sheryl Leeson thought, could not be given any weight whatsoever given that full psychological reports were already available to Dr Dryson at the time he made his assessment. Furthermore, there is no basis whatever for concluding that Dr Dryson had not done what he purported to do, namely, consider all of the 20 items which were presented to him. The reference by Dr Dryson to a capacity for 30 hours of work is nothing more than a reference to the definition of the Act of full time work. I do not agree that the further opportunity given to Mr Jones to present further evidence at the time the first review was called should be treated as irrelevant. Even if this additional opportunity had not been given, in my judgment the whole procedure adopted by the Corporation under their "final version" affords, and did afford, a reasonable and proper opportunity for Mr Jones to make his case fully known. There has been no breach of the audi alterem partem principle. 10. Failure to make the determination: The point made by the appellant here is that following Dr Dryson's reports, and all the procedures pursuant to the "final version", the Corporation's decision making panel comprising Miss Yvonne Harris, Dr Chitgopeker and Karen Williams were apparently each given a memorandum in the following terms:- "Further to the recommendations of the occupational and medical assessor we agree/disagree that Craig Jones has demonstrated capacity to work. Further there are no further treatment options and that rehabilitation in this context is complete." Each member of the panel noted that they agreed with this proposition, and noted on the memorandum is the fact that the appellant was telephoned on 6 January 1999 to be advised of the result. The appellant says that the memorandum asks the wrong question, namely, whether Mr Jones has "demonstrated capacity to work" rather than putting the abstract question of whether "the person is suited by reason of experience, education, training or any combination of those things to have capacity to work". I do not accept that there is any substance in this submission. The memorandum of 15 December is nothing more than an internal management tool to record the voting of the three members of the panel. It clearly assumes that the recommendations of the occupational therapist and the medical assessor, Dr Dryson, have been read in detail and these deal in full measure with the abstract issues involved in the decision of whether Mr Jones had capacity to work. Furthermore, I am advised that all three of the members of the panel convened on 6 January to discuss the matter and unanimously endorsed the opinion of the medical specialists and advisors. 11. Failure to give reasons: The third basis of procedural impropriety which gives rise to a breach of natural justice according to the appellant is that there is a failure to give reasons for the decision of Dr Dryson and the panel. Counsel's argument is that "All Dr Dryson does is to make recommendations about certain jobs". There appears to be an expectation that the question being asked by the legislation is one which is being answered implicitly by the recommendations. In other words, because Dr Dryson recommends capacity to work it must therefore be that the occupations noted are those to which Mr Jones is suited by virtue of Mr Jones' experience, education and training or any combination of these matters. Counsel argues that the simple polling of members of the panel as to whether they accepted the recommendations does not go into any detail as to why the decision was made in the way it was, and does not therefore satisfy the Corporation's obligations to determine a person's capacity to work. It is not for Dr Dryson to make the decision, it is for the Corporation to do so, and it should not abrogate its responsibility to make this determination. Again, I do not accept that there is any substance in this argument. In the first place, it is not Dr Dryson's job to recommend the kind of job the appellant might be capable of doing. This is an assessment made by an occupational therapist, not the doctor. Furthermore, the decision making process is not simply a rubber stamp by the panel on the memorandum of December 1998, it is the whole process with reasoned medical reports and recommendations which arise from the "final version" assessment scheme. The appropriate persons to give reasons for the recommendation for particular jobs must obviously be the medical experts and the 12. occupational therapists. The reason for the panel's decision is those medical reports and recommendation. The reason Mr Jones does have capacity to work within the meaning of the Act is because the medical experts, occupational therapists, the psychologists and the appellant's own general practitioner in their expert opinion consider that to be the case. I accept the Review Officer's findings, and the appeal is dismissed. Should any issue of costs arise, counsel should file brief memorandum. (G.V. Hubble) District Court Judge