Barnes v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON (2013] NZACC 339 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN DIANNE BARNES (ACR147/13) Appellant AND DENT CO CORPORATION Respondent HEARD at WELLINGTON on 8 October 2013 APPEARANCES Mr Jonathon Miller, Counsel for Appellant. Ms K Berry, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 24 February 2012, determining that the appellant had attained vocational independence in respect of six work-types. [2] This was in fact the second decision of the respondent determining the appellant's vocational independence, the first decision being issued on 3 June 2008. It is the case that that decision, when taken to appeal, was overturned on the basis that the medical assessment which had given rise to that decision had not taken account of the appellant's mental injury condition for which she had been granted cover in or about October 2006. [3] It was the case that the physical injury suffered by the appellant to her back in March 2005, which caused her to give up work in March 2006, had been the injury condition 2 which the assessor had considered as to whether it did enable the appellant to engage in other work-types which had been identified. It is the case that subsequent to the decision of Judge Ongley overturning that earlier vocational independence decision, a medical report was obtained on the appellant's current situation relating to her mental injury, and then a further Vocational Independence Medical Assessment was carried out by Dr Ruttenberg on 13 February 2012, and it was his assessment report that brought about the respondent's decision of 24 February 2012, which is now the decision in issue in this appeal. [4] It is the case that subsequent to that decision, the appellant sought a review of it and a review hearing took place in February 2013 with the Reviewer issuing a decision on 27 February 2013 confirming the correctness of the respondent's decision determining that the appellant had attained vocational independence in respect of the six work-types which had been assessed as being suitable for her. [5] For the purposes of that review hearing the appellant, through her counsel, introduced a medical report from Dr David Black, Occupational Medicine Specialist, and it is the case that Mr Miller submits that the assessment and opinion of Dr Black should be preferred to that of Dr Ruttenberg and that it is the case that the appellant cannot sustain any of the work-types for 30 or more hours per week. [6] I find it to be the case that it is only the question of whether the appellant's covered physical injury and its ongoing circumstances are such that would prevent her from engaging in any of the work-types for 30 or more hours per week, as it was determined by a specialist assessment from a psychiatrist, Dr Tina Page, that the appellant was not suffering any mental injury which impacts on any employment tasks and her report recorded the fact that the appellant agreed that her mental health issues were not impairing her ability to work. [7] This is a case where I find the decision in question calls for a determination of whether it is the report of Dr Ruttenberg or Dr Black that should be accepted, and it is the case that in addition to the Vocational Independence Assessment Report which Dr Ruttenberg provided, he subsequently provided a response to the report provided by Dr Black. [8] It should also be noted that there is no issue in relation to the occupational ability of the appellant in respect of the work-types which have been determined as being medically sustainable. 3 [9] Dr Ruttenberg's Vocational Independence Assessment Report is of significant length, namely 19 pages, and he first examined the appellant back in January 2007, and then had an initial medical assessment in August 2011 before the final assessment now in issue. It is the case that there had been two previous Vocational Independence Medical Assesments by other specialist occupational assessors, and Dr Ruttenberg was able to have reference to those reports to assist with the background of the appellant's medical condition. [10] I do not propose to set out in great detail the substance of Dr Ruttenberg's report, but I find it to be the case that he has fully assessed the appellant's then medical condition, and on the basis of his significant assessment he identified that there were six work-types which were medically sustainable by the appellant for 30 or more hours per week, those work-types being as follows: Retail Manager Warehouse Administrator/Manager Stock Clerk Dispatch and Receiving Clerk Office Manager Office Cashier [11] I note that Dr Ruttenberg was fully aware of the appellant's ongoing pain condition in her lower back, and he made specific comment on each of the work-types about the fact that the appellant's ongoing pain condition and her requirement for pain medication did not preclude her from being able to engage in those work-types. A comment that he made in a number of the cases was as follows: "The role is considered to be within the purported tolerance levels and despite pain symptoms is considered medically sustainable and in a full-time capacity." [12] It should be noted that there were another 20 work-types which had been determined by the Occupational Assessor which Dr Ruttenberg found would not be medically sustainable by the appellant with a number of reasons given, but all involving activity which the appellant would be unable to sustain. [13] It should also be noted that at the conclusion of his report Dr Ruttenberg noted that whilst the appellant was continuing to experience pain symptoms it was not a situation where she required any further physical rehabilitation, and his final comment was as follows: 4 I do not consider that there are any outstanding rehabilitation issues and again would concur with the opinion that has been expressed several times previously on the fact that she has vocational independence in appropriate job options [14] Dr Black provided a report to the appellant's counsel in November 2012, but it is a report which followed a meeting with the appellant in July 2012. Whilst the report from Dr Black is of five pages, I find that the relevant passage is the following comment which he makes in his report: On examination I found the cervical spine, shoulders and upper limbs to be normal. Straight leg raising was 90 on the right and restricted to 75 on the left. Her lower limbs were bilaterally areflexive [sic]. I found marked decrease in sensation in the left leg, with no spinal dermatome pattern and some associated weakness. I have reviewed the voluminous file of documents provided and find a relatively consistent pattern of diagnosis and acceptance of the scale of Dianne's problems but note that the ACC assessments suggesting the Dianne can return to fulltime work seem disconnected from the assessments which are made for the purpose of providing care and treatment. There is a marked difference between reports prepared for the purposes of Vocational Independence Assessment and those commissioned for the vocational independence process. These reports generally rely on the idea, as exemplified in Dr Ruttenberg's report of the 13 February 2012. On Page 11, he says "there is no evidence today of any significant physical, structural or mechanical cause for her symptoms. There s also no evidence of any new injury from a clinical perspective ... It is probable that she has a chronic back syndrome." That statement is alright as far as it goes but it falls well short of providing any sort of definitive diagnosis. Neither is there any such diagnosis anywhere else in the report. Dr Ruttenberg concludes with a "strong impression and indeed my opinion" that "while Mrs Barnes might well be experiencing pain symptoms, these are not such particularly when one considers what she is able to do in her home environment and private life, that she cannot return to an appropriate productive work environment and indeed in fulltime capacity." I find difficulty in understanding this comment but note that Dr Ruttenberg goes on to state that he finds "disparity between reported and measured tolerance for sitting, her ability to do research on a computer at home, her ability to look after two teenage girls with all the associated demands and indeed, normal clinical examination findings. " Dr Ruttenberg makes it clear that he considers that there is "portrayal over disability" but acknowledges that this may well be a measure of fear avoidance and decreased self confidence. Nowhere does Dr Ruttenberg acknowledge any impact of mental health and indeed in the second to last paragraph he says "there is no evidence of mood disturbance ". [15] Dr Black then stated as follows about his diagnosis. The diagnoses above make it much less than likely that Dianne Barnes will achieve employment at 30 hours a week in a manner in which she could be required as vocationally independent. She is capable of a trial of return to work and she may well be able to work part-time but my estimate is that it is unlikely she would achieve more than half-time. Dianne's ongoing pain, loss of sleep, requirement for significant medications and continuing mental health issues prevent her from. achieving vocational independence. ... 5 [16] Dr Black's final comment stated, inter alia, as follows: Dianne Barnes last VIMA was completed on the 13th February 2012. I do reach a different conclusion to that contained in the previous VIMA and the reason is that I am not prepared to dismiss Dianne's significant underlying psychiatric conditions or her reliance on medication as being adequately adequately controlled and therefore of no relevance in assessing her ability to work. The question comes down to whether she is fit to work or, on the balance of probability, is likely to sustain work to a level where she can be reasonably said to be vocationally independent. In my opinion, she is fit to return to work, but it is my judgement that she will not be able to achieve a level of performance and reliability which would provide her with vocational independence. That is the difference in the opinion between myself and Dr Ruttenberg and I note that in his report he does acknowledge the pain, but dismisses it because he considers that medication alleviates it and he completely disregards the mental health issues, probably because Dr Page has not included the depressive disorder in Axis I of her diagnosis. These differences in approaches should be quite clear in my report. . . . [17] Dr Ruttenberg commented on Dr Black's report and his final comment which I find is relevant is as follows: The fact that Ms Barnes requires medication again, does not mean she cannot work. Dr Black has suggested that the pain and side effects of medication affect cognition and that it is unfair to put her in a position with a level of responsibility, there is no independent verification in anybody else's reports, nor does Dr Black himself, suggest that there is cognitive impairment relating to mediation [sic] or pain that stops her working. The medication does not affect her current functional capacity, which is noted in detail in my report. The medication does not affect her looking after her grandchildren, driving her grandchildren around and doing shopping, doing voluntary work for a motorbike club, doing household tasks and chores and doing research on a computer, the quantify of which she tells me is increased. [18] Whilst the Court received oral submissions from Mr Miller in support of the appeal at the hearing, it is the case that the written submissions which had been filed were provided by his associate, Dr Ellie Wilson. One of the submissions made by Ms Wilson is that some of the work-types identified as being suitable were in fact work-types which the appellant had been engaged in prior to her injury, and she submitted that four of those work-types were in that category, namely, Retail Manager, Warehouse Administrator/Manager, Stock Clerk, and Dispatch and Receiving Clerk. Counsel submitted that those work-types must be disregarded as they are not relevant for an assessment of vocational independence [19] A further submission made by Ms Wilson was that by ignoring the unpredictable condition of the appellant's pain condition, meant that there had been a failure to 6 recognise the combined effects of medication, fatigue and psychological symptoms as well as pain. [20] In his submissions, Mr Miller submitted that the evidence was that the appellant's back pain was unpredictable and he contended that it was unlikely to be accepted as being a condition which would be accepted by an employer, as when such pain did occur the appellant needed to lie down. He submitted that the appellant was not capable of engaging for 30 hours in any of the work-types because of her ongoing pain condition. [21] Ms Berry, Counsel for the Respondent, submitted that Dr Ruttenberg had considered the appellant's pain problem and he had discussed this with the appellant at the time of his assessment and how she was able to look after this problem. Counsel submitted that Dr Ruttenberg had considered all the appellant's injuries and also the mental health matter and had come to his decision after determining that those circumstances did not prevent the appellant from engaging in the work-types identified. [22] Counsel referred to the fact that the appellant has the skills and experience to undertake the work-types identified and she submitted that there was no evidence to establish that the fact that the appellant had obtained vocational independence was incorrect. [23] In regard to the submission about the pre-employment work-types, counsel submitted that it is only the immediate pre-employment work-type which is excluded under the Act, and it is not a case where the various work-types that the appellant may have been engaged in over the previous 20 to 30 years, must be excluded. DECISION [24] The decision in issue in this case is the respondent's decision made pursuant to section 107 of the Act determining that the appellant had attained vocational independence. The Corporation must be satisfied that the appellant has the capacity to undertake the work-types identified in the assessment for 30 or more hours per week. [25] In the case of this appellant she suffered the injury to her back in March 2005, and whilst she was able to return to work after a period of treatment and time off work, she suffered aggravation to that back injury in March 2006 and it was as a consequence of that second event that she was regarded as being incapacitated and began to receive 7 weekly compensation. At the time she ceased employment she was aged 49 years and had been engaged in employment more or less full-time since 1973. [26] At the time of her injuries which caused her incapacity, the appellant had been engaged for two years and three months by Fulton Hogan as a Hirepool Co-ordinator, and prior to that employment she had been engaged in a significant number of other work conditions over the preceding years. From the occupational reports which have been presented to the Court it is clear that the appellant has significant and wide experience in various types of work. Prior to the assessments which brought about the vocational independence decision now in issue, the appellant had in fact undergone two previous vocational independence assessments and in each case a significant number of work-types were identified as being suitable for her, both from an occupational and medical perspective. [27] As I noted earlier in this decision, the respondent's prior decision determining the appellant's vocational independence was overturned by Judge Ongley by reason of the fact that the medical assessment had not given consideration of the appellant's covered mental injury. The decision to overturn the primary decision was made solely on the fact that the mental injury had not been considered, rather than it being asserted that the mental injury was in fact causing existing problems to the appellant. [28] It was as a consequence of the matter again being referred back to ACC that a specialist assessment was made by Dr Page, a mental injury specialist, and as I noted it was her advice that there was no current mental injury problem affecting the appellant's employment ability. Thus it was that the question of whether the appellant was medically capable of engaging in any of the work-types for 30 or more hours was to be determined solely from the physical assessment, and in the latest case that assessment was carried out by Dr Ruttenberg, who although not involved in any of the earlier vocational independence assessments, had examined and considered the appellant back in 2007. [29] I have set out the relevant statements made by Dr Ruttenberg in his assessment and as he noted, the appellant does have ongoing pain problems which need to be considered when determining whether or not she has the ability to engage in full-time work. [30] I find it to be the case that Dr Ruttenberg has given significant consideration to the appellant's then medical condition and the fact of her ongoing pain problem, and that as 8 was the assessment by the earlier medical assessors, he determined that there were certain work-types that the appellant was able to engage in despite her ongoing pain symptoms, and I have set out earlier in this decision the comments which he made in relation to the work-types which he identified and where he specifically found that the appellant was able to engage in those work conditions having regard to what they physically required despite her pain symptoms. [31] I find that the report of Dr Ruttenberg has given full detail and comment regarding each of the six work-types and the reasons why he considered the appellant did have an ability to engage in those work-types on a full-time basis. [32] As I have earlier noted, Counsel for the Appellant has submitted that the report of Dr Black, which is in opposition to the decision of Dr Ruttenberg, should be preferred, and it be established that the appellant does not have the ability to engage in any of the work-types on a full-time basis. [33] I find that one of the first points made by Dr Black has no validity, namely the allegation that Dr Ruttenberg did not consider the appellant's mental condition, where it is the case that prior to Dr Ruttenberg's assessment he had been advised by Dr Page that there was no problem with the mental injury, and it was the case that the appellant herself advised Dr Ruttenberg that she was not experiencing any problems in that regard. [34] In terms of the appellant's ability to engage in the named work-types on a full-time basis, it was Dr Black's assessment that while the appellant could engage in those work- types to some extent, she was not able to do so on a full-time basis, principally because of her ongoing pain condition. [35] I find that the assessment of Dr Black is simply his opinion of what he considers the appellant's situation to be, and I find that despite his assertion to the contrary, it is the case that Dr Ruttenberg has considered all aspects which are relevant to a determination of vocational independence and I find it to be the case that it is simply Dr Black having a different opinion, rather than it being established that there has been a failure on the part of Dr Ruttenberg to consider all relevant factors required in an assessment of vocational independence. [36] There is one final matter which was assessed by Counsel for the Appellant and that was the fact that some of the work-types which formed the decision of vocational 9 independence were in fact work-types which the appellant had been engaged in prior to her injury. I find it to be the case that the statutory situation is that it is only the work- type in which the appellant was engaged at the time she suffered her incapacitating injury which cannot be considered to be part of vocational independence. [37] In the case of this appellant her pre-accident employment was that of a Hirepool Co-ordinator at Fulton Hogan, and in one of the earlier occupational assessment reports, that work-type did include the roles of Sales Assistant, Dispatch and Receiving Clerk, Stock Clerk and General Clerk. On that basis, it is the case that three of the six work-types which Dr Ruttenberg identified, namely, Stock Clerk and Dispatch and Receiving Clerk, do appear to be two work-types which were part of the appellant's wide-ranging work engagement at Fulton Hogan, and therefore I find that from a legal perspective, it cannot be the case that those two work-types can be determined as being work-types for which the appellant can be determined as having vocational independence. [38] It is of course the legal position that a determination of vocational independence only requires a claimant to be identified as being physically capable of engaging in one work-type in order for the determination to be successful, and in the case of this appellant there are a remaining four work-types which I find, as a matter of fact, she has been established as having gained vocational independence, and it is the case that the appellant's ongoing medical condition is not one which affects her functional capacity to engage in those work-types. [39] For the foregoing reasons, therefore, I find that the respondent's decision determining that the appellant had attained vocational independence was the correct decision and this appeal is therefore dismissed. DATED this 18th day of October 2013 M J Beattie District Court Judge