Corbin v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 272 /2008 IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN DOUGLAS CORRIN (Al 106/07) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at AUCKLAND on 7 October 2008 APPEARANCES Mr A Cadenhead, Counsel for Appellant. Ms A Dowgray, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal concerns the respondent's decision of 16 January 2006, whereby it determined that the appellant had attained Vocational Independence in two work-types, namely Stock Clerk and Ticket Seller. [2] The respondent's decision was confirmed by Review Decision dated 1 March 2007, from which the appellant now appeals to this Court. (3] It is the appellant's submission that the respondent's decision cannot stand by reason of the fact that the Medical Assessor failed to give consideration to the impact which the appellant's left eye injury may have had on his ability to sustain 35 or more hours per week, it being contended that the only injuries considered by the Medical Assessor were those suffered by the appellant in motor accidents in July and October 106.07 (pg) 2 1986, being injuries to his left hand, head, and neck, and that no consideration was given to the appellant's eye injury for which he had cover and which was suffered in June 2000. [4] The background facts relevant to the issue in this appeal may be stated as follows: . At the time the respondent made its decision, now the subject of this appeal, the appellant was aged 59 years. . In July 1986 the appellant suffered injuries to his left hand and head as a consequence of the bonnet of a Land Rover flying up. Some four months later, in October 1986, he suffered a neck strain injury in another motor accident. At the time of these accidents the appellant was employed as a roofing refurbisher, and although he continued in that employment for some time thereafter, he was identified as being incapacitated in 1991. In June 2000 the appellant suffered an injury to his left eye when a piece of metal went into it. The injury diagnosed was that of left paracentral corneal opacity and associated irregular astigmatism. The appellant's unaided vision was identified as being 6/6 on the right and 6/24 on the left A report from the Eye Institute indicated that the appellant's visual function on the left was not likely to improve The appellant underwent two Initial Medical Assessments in March 2004 and July 2005 respectively. Both assessments identified work-types requiring sedentary or light physical demand as being medically sustainable. . On 1 November 2005, the appellant underwent a Vocational Independence Occupational Assessment and which identified ten work-types as being occupationally suitable for the appellant. . On 8 November 2005 the appellant underwent a Vocational Independence Medical Assessment with Dr Rod Nicholson, Occupational Medicine Practitioner. . Dr Nicholson's assessment will be considered in further detail hereafter, but the bottom line was that he identified two work-types as being within the appellant's physical capabilities, namely Stock Clerk and Ticket Seller. 3 Consequent upon those assessments the respondent issued its decision on 16 January 2006 determining that the appellant had attained Vocational Independence in relation to the work-types of Stock Clerk and Ticket Seller. . The appellant sought a review of that decision and a Review Hearing took place on 2 February 2007, at which the appellant was represented by counsel At that hearing Mr Cadenhead submitted that the Medical Assessor had not taken account of all of the appellant's injuries, specifically the injury to his left eye, and for that reason the assessment was flawed. .. In his decision dated 1 March 2007, the Reviewer, Mr Hancox, stated inter alia as follows: "Mr Corrin gave evidence about his medical condition. However, he did not produce other assessment reports by qualified assessors to challenge the reports of Ms Koligi or Dr Nicholson. In the absence of that or any other persuasive medical evidence to the contrary, I am not persuaded that the vocational independence assessment reports are flawed or that the requirements of the legislation were not met. I find that the conclusions reached by the occupational assessors were fair and reasonable. I have considered all the evidence on file, and the evidence and submissions of the parties. I find that, on balance, Mr Corrin has not shown that the assessment reports were flawed or that ACC has not followed the procedure in the Act. ACC's decision is therefore correct." For the purposes of the appeal to this Court further medical evidence has been introduced in the form of a further report from Dr Nicholson, the Medical Assessor, and two reports from the Eye Institute. [5] As earlier noted, the appellant's submission is that the medical assessment failed to take proper or any account of the appellant's eye injury. The instances of that injury being referred to in the two initial medical assessments are as follows: 1. The first Initial Medical Assessment conducted by Dr Tony Chew in March 2004. Dr Chew identifies the injuries that are the focus as being those to his neck, left arm, and right shoulder, being the injuries sustained in 1986. Under a heading, "Past Medical History", he stated: "He injured his left eye after foreign body entered the eye. He has lost partial sight in his left eye. There is no further mention of the eye injury or any impact it might have on any of the work-types that were being considered. 2. The second Initial Medical Assessment carried out by Dr David Scott dated 13 July 2005. Dr Scott noted that the injury he was to consider was that of neck pain. Under the heading of "Documents Reviewed" he refers to the report of Dr Gray, Opthalmologist, of the Eye Institute of August 2000, showing LV 6/24 due to corneal scarring. Further on, under the heading "History of Injury and Treatment" Dr Scott notes: "On 1/6/00 while working under a car, something went in his left eye. He has residual. corneal scarring and reduced vision as a result." Dr Scott also carried out an examination which included the appellant's vision and which he noted - 'RV 6/9 LV 6/36." There is no mention of the eye injury being a factor in any of the work-types discussed 6] The Vocational Independence Occupational Assessment was carried out on 1 November 2005, and the only reference to the appellant's eye injury came in that section of the assessment which notes "Claimant Comments", where the appellant is noted as stating: Doug stated he has had many injuries, 6 in total. Also stating, ACC do not appear to be considering all injuries - Eyes, Right Shoulder, Back and Neck. Doug states he does not think he could return to full-time work because of his injuries and constant headaches and vision problems [7] The Vocational Independence Medical Assessment was carried out by Dr Rod Nicholson on 8 November 2005. Dr Nicholson notes the Eye Institute Report of August 2000 amongst the reports to which he was referred. Under the heading "History of Injury" which is a full page of close-typed report, there appears this sentence: "He has a left paracentral corneal scarring as a result of a foreign body to his left body." Under the heading "Past Medical History" - "Left eye cornea injury" is noted, along with Appendectomy and Hiatus Hernia. 8] Or Nicholson's report considers the nine work-types identified by the Occupational Assessment and excludes seven of these on the basis that they involved activities which would aggravate his symptoms of injury to the neck and shoulder, but he found that the work-types of Stock Clerk and Ticket Seller were suitable as they were mainly sedentary with no heavy lifting or heavy physical demand. 5 9] Further medical reports from the Eye Institute were introduced through Mr Cadenhead. The first report dated 24 August 2007, was from Dr Gray, Opthalmologist, who had been requested to reassess the appellant. The details of Dr Gray's findings from his examination of the appellant were as follows: . Today's left Orbscan corneal mapping confirms visually significant central corneal irregular astigmatism related to his old corneal foreign body. . Mr Corrin is unable to tolerate hard RGP contact lenses. . Mr Corrin is still experiencing problems in his left eye including watery eyes, irritableness, blurry vision and presbyopia Today's vision with reading glasses N5 right, N10 left (ph 6/12). . Unaided vision to 6/6-1 right and 6/21 left. . Left improves to only 6/12 with refraction (+1.0-0.5x35). When I placed a left lens in front of his left eye, he reported that it "does not make much difference" to his binocular vision. [10] In February 2008, Counsel for the Respondent, sought further opinion from Dr Nicholson in relation to the appellant's eye injury. At that time Counsel had a copy of Dr Gray's report of August 2007, referred to above. Counsel posed the following question: "We would be grateful if you could advise whether you have seen the enclosed report from Or Gray before, and advise your comments in respect of it, including whether you would need to assess Mr Corrin again in light of the information in the report?" Dr Nicholson responded as follows: "I have not seen the report by Dr Gray previously. I note that the report states that Douglas has a central left eye corneal irregular astigmatism. Symptoms include watery eye with irritableness, blurry vision and presbyopia in his left eye. His vision is recorded as 6/6 -1 in his right eye and in his left 6/21 but improving to 6/12 with refraction or spectacles. He was recommended to regularly upgrade his glasses. When I assessed Douglas on 8.11.05, I was of the opinion that he was able to perform the jobs of Stock Clerk and Ticket Seller for at least 35 hours per week. I do not see any reason based on the above visual information why he could not perform the above jobs as already recommended. His vision with spectacles is likely to be at least 6/12. Legally he can drive with this visual acuity. His vision will not limit his ability to work as a Stock Clerk or Ticket Seller. These jobs may involve using a computer. Douglas did state that he can use a computer for up to one hour at a time (limitation due to lower back pain) and that he also watches TV regularly." 6 [11] The final medical evidence introduced is a further letter from Dr Gray dated 17 June 2008, to appellant's counsel. Counsel had posed two questions for Dr Gray, those questions and answers are as follows: Q1 "How Mr Corrin's eyesight will affect him in terms of his ability to carry out work place functions?" A1 His current unaided eyesight completely prevents him from seeing anything clearly within arms length. The left eye is much worse than the right eye. Q2 "How I believe Mr Corrin's eye problem will affect him in terms of function, particularly if he were to be employed in the area of computers?" A2 Current significant left blurring and focus difference between the two eyes would be expected to make computer work extremely difficult. It would be impossible to use computers without specially made spectacle correction, which will only partially improve function." [12] Mr Cadenhead submitted that Or Nicholson had been provided with a copy of Dr Gray's August 2000 report, but did not give it any consideration at all in terms of his assessment. Mr Cadenhead further submitted that Dr Nicholson's report was entirely based on his consideration of the effects of the appellant's 1986 injuries and he further noted that he, unlike Dr Scott, had not carried out any eye examination. [13] Counsel submitted that Dr Nicholson did not factor the appellant's ongoing eye difficulties into his consideration of matters relevant to vocational independence and as such this was a flaw in his assessment which meant that his assessment could not be sustained. In that regard counsel referred to the decision of this Court in Millane (Decision No.87/04) as being on point and in support of his submissions. [14] Ms Dowgray, for the Respondent, submitted that the only claim that was current at the time of the assessment and for which the appellant was receiving entitlements, was the 1986 injuries, and she submitted that Dr Nicholson was aware of all the appellant's injuries. She submitted that this could be established from the fact that Dr Nicholson identified the Eye Institute report and the earlier medical reports of Dr Chew and Dr Scott. [15] Counsel further noted that Dr Nicholson had now given a further opinion in relation to the eye injury and its effect on the identified work types, and that in those circumstances Dr Nicholson's assessment could not be considered to be defective. 7 DECISION [16] This is an appeal by a claimant from a decision of the Corporation which determined that he had attained Vocational Independence within the meaning of the Act. This Court has noted on a number of occasions that such a determination is a major determination affecting a claimant's entitlements for personal injury by accident under the Act. [17] The effect of a determination is to state that despite the claimant still being acknowledged as being incapacitated within the meaning of the Act, nevertheless his right to weekly compensation for that incapacity has been lost, as he has been assessed as being physically capable of carrying on other work-types for which he has been occupationally and medically assessed as being capable of undertaking. [18] In terms of the medical assessment, it must identify that ability to work and Section 108(3) states: (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." In terms of the capacity to undertake the types of work identified, that capacity must have regard to the meaning of vocational independence, which in Section 6 of the Act is defined as meaning ". . . 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 these things; and (b) for 35 hours or more per week." Thus it is that the assessment must consider that threshold by having regard to the claimant's personal injury, or injuries. [19] In this present case, I find that the whole tenor of Dr Nicholson's assessment is that of an assessment which is considering the appellant's injuries suffered in the two accidents of 1986, and has had no regard whatsoever for the eye injury of 2000. The eye injury is simply noted as being part of the appellant's "past medical history" along with his 8 appendectomy and hernia, and its mention in that category, I find, is wholly indicative of the fact that it played no part in Dr Nicholson's assessment. [20] This finding is underlined by the one sentence to which Dr Nicholson gives to the eye injury, and he simply calls it a left paracentral corneal scarring, rather than regarding it as an injury which affects visual acuity. Whilst counsel for the respondent has referred to the fact that Dr Nicholson did have information regarding the eye injury, in the form of Dr Gray's report and also the report of Dr Scott, nevertheless I find it to be the case that he has not referred to those reports or in any way alluded to the eye injury in any of his work- type assessments. [21] Accordingly, in terms of Section 108(3), I find that the Medical Assessment has not given the respondent an opinion having regard to all the claimant's personal injuries, and it therefore cannot be said to be an assessment which complies with the statute. [22] As noted by Mr Cadenhead in his submissions, the Court has previously considered this question in the appeal of Millane (supra), where again the Court had found that the Medical Assessor had not had regard to a back injury of the claimant when assessing his work capacity. [23] In that case, I noted that the definition of a capacity for work must include a requirement to have regard to the consequences of all injuries for which a person has cover under the Act and which may affect his ability to engage in any particular form of employment. That finding holds true even though the concept has changed from "capacity to work" to "vocational independence". [24] In the present case, the Medical Assessor has subsequently stated that his assessment would not change after taking into account the nature of the appellant's eye injury. This advice was given some two years after the respondent's decision. On the particular facts of Dr Nicholson's assessment, I have found that he has taken no account of the appellant's eye injury in the course of his consideration, and so it is not simply a case of him amplifying or giving further reasoning for his assessment having regard to a particular physical injury. His advice given in February 2008 can only be regarded as a form of ex post facto reasoning, which in the circumstances I find cannot be considered as part of his assessment in terms of the Act. 9 [25] Whilst it is proper that the Court allow a Medical Assessor the opportunity to give further evidence by way of explanation as to any facet of his assessment which may be called into question, as was stated in Veltmans (141/03), nevertheless that will only be allowed where there is, at the very least, an identification of the injury and some consideration of it, albeit that that consideration may, from a claimant's perspective, be considered to be insufficient or too vague. In such a case the assessment, upon which the determination of Vocational Independence is made, can be said to have at least considered all covered injuries. [26] In the present case, Dr Nicholson's subsequent advice cannot be treated as simply being explanatory of his earlier decision, as his earlier decision from a fundamental perspective must be considered to be flawed because it wholly omits to consider all the appellant's covered injuries as he is required to do. [27] For the foregoing reasons, therefore, I find that the respondent's decision, made as it was on the basis of Dr Nicholson's Medical Assessment, cannot be sustained in the light of a finding that his assessment did not consider the appellant's eye injury, for which he had cover. This decision is also consistent with another decision of this Court in Coulter (405/04), where the overlooked injury was noise induced industrial deafness. [28] The consequence of my finding is that the respondent's decision must be quashed and the appellant have restored to him his weekly compensation entitlement as from the date it was ceased and for so long thereafter as he can continue to establish eligibility for same. [29] The appellant being successful, I allow costs in the sum of $2,500 together with qualifying disbursements. DATED this .. .(Q.......day of November........2008 M J Beattie District Court Judge