Crook v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2013] NZACC 418 UNDER The Accident Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. ACR 638/11) BETWEEN ELIZABETH CROOK Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 25 October 2013 Appearances: Mr A Prendeville for appellant Ms S L Churstain for respondent Judgment: 20 December 2013 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] This appeal concerns the respondent's decision on 23 December 2010 finding the appellant vocationally independent in eight job types. The appellant says that the vocational independence assessments failed to recognise her limits of mobility and concentration caused by back and leg pain, and by a chronic pain syndrome. Background [2] Ms Crook suffered a back injury on 16 September 2008 when lifting into her car a heavy fish box containing paper brochures. Her injury occurred at home. Her work at the time was as chilled Foods Manager with Progressive Enterprises Lid for 45 hours per week in a permanent full-time position. [3] She consulted her general practitioner immediately and a claim was made for cover for a right lumbar disc prolapse with radiculopathy. She obtained cover including cover for a right hip sprain. [4] An initial occupational assessment (IOA) was made some six months later on 31 March 2009 followed by an initial medical assessment (IMA) by Dr Roderick Douglas on 22 June 2009. At that time, Dr Douglas suggested that the Ms Crook participate in an activity based programme and he expected that she would be able to have a graduated return to work in six weeks time. [5] Ms Crook did a 12 week activity programme but was not able to return to work. Spinal surgeon Mr G Howie reported in December 2009 that: "... films show a broad L4/5 disc protrusion above a rather immobile L5 level (large transverse process and reduced disc height 15/S1). Discs above this are normal. The natural history for this is disappointingly slow, but improvement is likely. Alternatively discectomy and fusion is a consideration." [6] Dr Douglas examined her again for another IMA on 29 March 2010. He noted that an MRI of her spine showed "Central disc protrusion at L4-5 with no nerve root compromise. Annular tear at LS-SI with a minor associated right paracentral disc bulge. " Dr Douglas noted that Ms Crook report having constant pain across her lower back which radiated down the back of her right leg and calf. She had pins and needles in both her feet. She rated her pain on an analogue scale as 6/10 mostly, getting to 8-9/10 and helped by Celebrex approximately once per week, and lg of paracetamol four times daily. Dr Douglas wrote: "Libby has developed a chronic pain syndrome in association with some mechanical lower back pain. Her lower limb symptoms are no longer radicular in nature. Focussing on her functional capabilities rather than her pain symptoms is important. Libby stepped down from her position at work, but still has a good relationship with her employer and can work in casual role. Libby's symptoms remain such that she would not be capable of working full time at present. However she should be capable of part time work in a role that allowed flexibility of movement. A work hardening programme may help to ready her for part time work and a subsequent graduated increase in hours and duties." [7] Dr Douglas found several work types sustainable on a part time basis, and with gradually increasing hours likely to be sustainable on a full time basis. [8] Ms Crook then had a work trial over three months to September 2010. The work was assisting a store administration manager with administration tasks, including entering generic sales information into a computer; with rotation of tasks to ensure that she was able to frequently vary her position between sitting, standing and walking. However she did not work for the required four hours a day for three days a week. She completed hours sporadically or not at all. [9] A specialist medical review was done by orthopaedic surgeon Mr lain Kelman on 7 September 2010. Mr Kelman considered that the injury effects had not completely resolved but were significantly improved with a conservative regime of treatment. He reported: "She is not working at the present time but has recently completed a work trial for a period of 6 weeks where she worked up to 9 hours per week on a checkout. This was work of a particularly light nature, she did not do any bending, lifting or carrying and worked at an express checkout. She was very encouraged by this work and felt that she would be able to return to work doing this type of activity. . . . PATHOLOGY Ms Crook has suffered a mechanical disruption of the lower discs of her lumbar spine, this has come about as a result of lifting a heavy crate from the ground into the boot of her car. The ongoing symptoms of this are secondary to derangement of the L4-5 and L5-S1 discs. REHABILITATION She is making excellent progress with her rehabilitation. Her weight is reaching an acceptable level. She is maintaining her physical fitness for walking for 1 hour per day. Further to this she requires to start a core strengthening exercise programme and I suggest that she learn core strengthening for a period of 2-3 months through a Pilates instructor." Dr Kelman thought that Ms Crook would be able to return to her pre-injury employment if she followed rules of management of mechanical backache, maintained her ideal body weight, and carried out fitness exercises and core stability daily. [10] Another IMA was done on 25 September 2010 by Dr Paul Noonan, occupational medical advisor. He approved nine medically sustainable job types. Concerning the level of pain, he reported: "Libby reported that her condition has not changed significantly in the past six months, although she is now able to cope with it better than previously. She takes Paracetamol (eight per day) and Norflex (one at night). She takes Celebrex on average once a week when her back is particularly troublesome. She now walks around Mauao every day, but is not doing any other specific exercises Her most troublesome pain is in her low back, although she has intermittent radiation to her legs, worse on the right than the left. In general the radiation is to her buttocks and posterior thighs, although at times she has radiation to her legs. She also has pins and needles in her feet at times, especially when sitting. . .. DISCUSSION: Libby continues to have ongoing lumbar pain with intermittent radicular symptoms as a result of L4/5 disc pathology. Surgical intervention has been discussed, although there is significant debate as to whether this is appropriate. It is considered entirely reasonable for her not to proceed with surgical treatment unless there is a major accentuateon of her condition. She should continue with her present exercise programme, which mainly involves walking although it would be appropriate for her to also do some stretching and core exercises. She is likely to continue to have ongoing lumbar problems, which will preclude her from doing work that is significantly physically demanding, particularly if bending or working in awkward positions is required. She is also intolerant of being in one position for prolonged periods of time and ideally should have work that enables her to intermittently alter her position." Vocational Independence Occupational Assessment [1 1] After an internal ACC file review and a medical questionnaire completed by her GP, Ms Crook entered a final vocational independence occupational assessment (VIOA) that was done by Ms Ebbert on 26 November 2010. [12] Mr Prendeville submitted that Ms Ebbert did not have all relevant information, particularly the reports from Dr Douglas. Ms Churstain submitted that Ms Ebbert had sufficient information, particularly Dr Noonan's report; and further that a full medical history was not necessary for the purpose of an occupational assessment. I agree that the occupational assessment was concerned with the suitability of job types with reference to the appellant's training and experience. A recent medical assessment was adequate as background for the occupational assessment, but medical questions would be determined later by a vocational independence medical assessment. [13] Ms Ebbert listed the appellant's work experience and listed all the rehabilitation activities that were recorded by ACC. She then summarised relevant aspects of work experience and rehabilitation, produced a list of transferable skills and finally related those skills to prospective work types. The assessment appeared to be a credible document, with the result that the appellant was suited to 17 work types, subject to medical approval. Vocational Independence Medical Assessment [14] The VIMA was done by Dr David Ruttenberg occupational medicine specialist on 9 December 2010. He listed 40 documents that he took into account in formulating his assessment. [15] Dr Ruttenberg recognised multilevel discal pathology, with disc bulges at the L4/5 and to a lesser extent, the L5/S1 level. In relation to pain he reported: "She describes lumbar pain 'feels like I have squashed it'. Pain radiates down the anterior aspect of the right leg towards the right knee. She also however, experiences pain radiating down both legs to involve both feet. The pain symptoms are constant and affect her in the same anatomical distribution. She describes variable numbness and tingling affecting the peroneal region but also variable parts of the lower legs. Symptoms are exacerbated by sitting after walking, sitting for long periods of time, and if she extends from a flexed position. She also walks to gain a measure of relief. She grades pain levels as being around 8/10 in severity on a visual analog scale where 10 is maximal and 0 no pain. She is not sleeping well and only manages about 5 hours a night. She attributes her sleep disturbance to the fact that she is unable to get comfortable. Her appetite is stable. She has actively lost about 14kgs. She does not feel that she is depressed today. She comments 'I'm always happy'." [16] Dr Ruttenberg noted that in a report by psychologist Gina Rickards done as part of a pain management assessment in May 2009, the opinion was expressed that there is no evidence of significant psychological distress. Ms Crook reported that sessions involving cognitive input for pain management had been of much benefit to her. [17] Dr Ruttenberg noted that the appellant was independent in her activities of daily living and personal cares. She was able to drive for short periods of time. Her tolerance for sitting was about 30 minutes before she needed to get up and move around. She walked on a daily basis around the Mount. [18] In Dr Ruttenberg's opinion, the appellant was fit to return to an appropriate work environment within biomechanical restrictions. He approved eight of the work types recommended by Ms Ebbert. He said that she would not manage in work roles that require heavy lifting, lifting and twisting actions, the adoption of constrained postures of the lumbar spine, where there is a need to sit for prolonged periods of time without a break, and where there is exposure to whole body vibration. [19] The Corporation then issued its decision of 23 December 2010 finding the appellant vocationally independent in eight occupations: . Cafe & Restaurant Manager . Retail Manager (Groceries) . Retail Manager . Work Place Relations Advisor . Training & Development Officer . Call or Contact Centre Team Leader . Warehouse Administrator/Manager . Dispatch & Receiving Clerk [20] The appellant applied for a review and obtained a medical opinion from David Black, occupational & environmental medicine specialist. Dr Black noted that Ms Crook had tried returning to work but the maximum level of work that had proven practical was three hours every other day. He described her self-reported limitations and noted that by 3 o'clock in the afternoon she would often be feeling nauseated and rated her pain levels at typically 8/10. She constantly felt tired, fatigued and frustrated. Dr Black said: "My examination findings, together with the history are indicative of a significant chronic pain disorder which is continuing to be fed by a pain generator in the lower lumbar spine. This is undoubtedly caused by varying compressive effects of the disc herniation but they may also be contributed to by discogenic pain. Overall, I would consider Libby's injury and consequent symptoms to be at the more severe end that I see in this type of situation and I can understand the reasons for the surgeons seriously considering but also expressing caution about operative treatment." [21] Dr Black assessed Ms Crook's ability to work in each of the occupations that had been approved by Dr Ruttenberg. The Corporation then asked Dr Ruttenberg to comment on Dr Black's opinion. In the subsequent review, the Reviewer compared the view of the two doctors in relation to each occupation. The different views are summarised as follows: Cafe or restaurant Manager Dr Ruttenberg considered that Ms Crook's ability to exercise by walking daily around Mount Maunganui, and to perform domestic tasks, reflected a real capacity for this kind of work in which no significant physically demanding tasks are required. Dr Black thought that Dr Ruttenberg did not recognise that stamina that would be required to undertake a full time job with the limitations of her pain. Retail manager - groceries Dr Black referred to the job type sheet used in the 2009 IOA describing "a high level of cognitive functioning with communication, interpersonal, administrative, organisational, purchasing knowledge, problem solving and decision making capabilities". Dr Ruttenberg found that there was no objective evidence to suggest that Ms Crook has or had any impairment with regard to cognitive functioning. Work place relations advisor Dr Ruttenberg considered this to be a sedentary role that involves sitting and operating equipment. In his opinion it was within her reported tolerance levels. Dr Black said it was not physically achievable by Ms Crook at that time and was not suitable. Apart from her limited sitting tolerance, he did not give specific reasons. Training and development officer The difference of opinion here was again the level of cognitive functioning. Once again Dr Ruttenberg said there was no objective evidence of cognitive impairment. Call or contact centre team leader Dr Ruttenberg considered the role to be within reported tolerance levels, with postural variation and no exposure to biomechanically demanding tasks. Dr Black saw the job as similar to a call centre operator but with more walk around the office. He said "she would find after a few hours her pain would become an impediment to being able to continue". Warehouse administration manager, Or Black noted requirements for frequent walking and standing to verify cargo and that bending, squatting or crouching may be required. There are also lifting tasks, all of which are physically unsuitable. Dr Ruttenberg considered the tasks to be within Ms Crook's reported tolerance levels for 30 minutes at a time. Dr Ruttenberg explained his reasons: "It is important to note, that while Dr Black describes in detail her pain levels through the day, he does not actually state what she does during the day. I fully accept that Ms Crook has pain levels that vary during the day. There is no evidence however, that suggests that the pain is such, that she is unable to mobilise, sit, stand or walk, or drive a motor vehicle. Similarly, there is no evidence that suggested to me when I met with her, that she could not perform some of the domestic tasks and chores. I have walked around the Mount myself, and recall the path as being undulating and at times uneven. It remains my opinion that when one considers her physical activity overall, that the role despite pain symptoms, is medically sustainable and in a full time capacity." Dispatch and Receiving Clerk Dr Black was concerned about tasks involving bending, squatting and crouching. Dr Ruttenberg said that the work type detail sheet does not actually clarify the frequency of those postures and they may be assumed not to be significant. [22] Overall, Dr Black concluded that the medical assessment had not taken into account the reality of Ms Crook's pain and the extent to which it disabled her. He agreed with Dr Ruttenberg only so far as he thought Ms Crook had the potential for full time work, but he considered she was not ready to be assessed. Dr Ruttenberg said: "While I note that Dr Black is in agreement with me, regarding optimisation of pharmacological treatment, it remains my opinion, that despite the need to do this that the pain symptoms are not such, that she is unable to return to an appropriate work environment. In that regard, we clearly disagree. In this regard too, I note that she has had appropriate psychological intervention and assistance as well as having participated in a physiotherapy supervised exercise based programme. I believe that she does have the wherewithal otherwise, to self manage pain symptoms. The optimisation of pharmacological therapy would assist her more in this regard. It still remains my opinion however that despite the current pain symptoms, that she still has vocational independence." [23] Dr Black's letter repeatedly expressed an opinion, without an objective factual basis, excepting his clinical examination at para [20] above. He then stated: "I note that Dr Ruttenberg discounts the symptoms as being radiculopathy or 'reflective of any nerve root irritation or compression' and considers that 'there may well be an element of neural sensitisation present'. Whilst the latter point is undoubtedly correct, the fact that nerve compression was not seen on the day of the MRI cannot overtake the clinical impression that this is occurring and is significant. If that were not the case, then the orthopaedic surgeons would not have considered surgery, which they have." [24] Dr Ruttenberg'a reply was: "I have difficulty reconciling this with his own clinical findings, which do not support a diagnosis of radiculopathy and nerve root irritation or compression either, It is hard to surmise that there might be nerve root irritation or compression present, if there are no radiological signs of it, there were no clinical signs of it when I assessed her and indeed, there had never few clinical signs of it when she had been assessed by other assessors previously. I also have some difficulty with Dr Black's opinion in this regard, given his assessment of her examination findings and history being indicative of a chronic pain disorder. He suggests that this is contributed to by discogenic pain. He does not suggest himself, that there is any nerve root irritation or compression or that the diagnosis is in fact incorrect." [25] The appellant was also referred to sports physician Dr Judith May, who did not offer a view on ability to work in limited occupations. After describing the more severe acute symptoms, in a letter of 10 August 2011, Dr May said: "She subsequently had a prolonged period of time off work and did a lot of physiotherapy and rehabilitation with good results. She subsequently has had several work trials and is currently employed by the supermarket on a very casual basis though she has not worked for several months. She did say that she managed to get her symptoms at a very manageable level and was managing to walk around the Mount daily. She was doing her ongoing Pilates programme. In March 2011 she had a hysterectomy and her symptoms have increased. She now describes a central low back pain that refers to the right buttock, anterior thigh, lateral calf and foot. It seems to be most aggravated by sitting and she finds walking helpful. She denies any numbness or tingling or weakness. She is otherwise fit and well." [26] Dr May said that the appellant's low back pain was causing her more problems than the leg pain. She did not find signs of any significant pathology today and agreed that a further MRI scan was unnecessary. She found that symptoms had been aggravated by recent abdominal surgery. She recommended continuing with the daily walk and pursuing the Pilates programme to improve deep abdominal strength. Review [27] Ms Crook gave evidence at her review. She described her pain levels, increasing during the day. She explained the extent of her walking around the Mount and also pool walking for exercise. But she limited walking to an hour a day. She had also taken up Pilates. She explained that pain affects her memory and concentration and that it often builds during the day to the point where she can't remember things. She would like to work full time but she considered that she was not able to. [28] The Reviewer decided that the grocery retail manager job was not appropriate for vocational independence because it was essentially her pre-injury employment. Cases in this jurisdiction have decided that pre-injury employment may be assessed only for the purpose of determining incapacity, but not for determining vocational independence. The Reviewer left undisturbed the general "Retail manager" occupation. The Reviewer also modified the decision by amending the Cafe or restaurant manager role to unlicensed premises only. It is questionable whether it would be proper to find vocational independence for a subdivision of the work type, where there is no separate ANZSCO category. The point is arguable, but it does not affect the outcome of the appeal. [29] Subject to those modifications, the review was dismissed. Submissions [30] At the review, and in the appeal, Mr Prendeville submitted that the Corporation had not attending to completing rehabilitation before subjecting the appellant to vocational independence assessment. Mr Kelman had recommended a three month course of Pilates. It was submitted also that ACC had not explored all modalities to address the effects of chronic pain and of subclinical depression. [31] Ms Churstain submitted that further rehabilitation is not a barrier to vocational independence. The Corporation is required to ensure that the appellant has completed the rehabilitation that is included in her IRP, but ongoing rehabilitation does not necessarily prevent the ability to work for 30 or more hours a week, which is the yardstick for vocational independence. 32] Mr Prendeville submitted that the effect of pain on the appellant's ability to plan and concentrate made her unsuited for jobs such as a trainee development officer, contact centre team leader, or workplace or relations advisor. She is unable to tolerate a sustained posture. The other jobs have a more physical demand and she would not be able to sustain crouching, squatting or bending, or frequent walking, in the course of a full time job. He submitted that the line of District Court cases including Nenewale [2004] NZACC 319 required that when chronic pain is at issue, adequate reasons about how the work is suitable taking into account that pain must be provided by an assessor in respect of each type of work considered suitable. [33] Ms Churstain submitted that Dr Ruttenberg did take account of all the relevant factors including chronic pain. He recorded the appellant's description of the effect of her pain, and then took account of her degree of customary activity. [34] Mr Prendeville submitted that the appellant had no computer training and could not enter a position requiring computer use. Ms Churstain submitted that computer skills had been adequately assessed. Ms Ebbert noted that: "Elizabeth rated herself as competent in using email and specialised software, which she has demonstrated the work completed within the grocery sector that involved emailing clients and other staff, as well as operating in house computer systems." Dr Almond had noted that she was fit for alternative work and "may be suitable for clerical and computer type roles". I agree that the evidence indicates that she had basic computer skills and, as Ms Churstain submitted, use of computer applications for particular jobs is part of on the job training that is usually accepted as being consistent with job suitability for vocational independence purposes. [35] Mr Prendeville submitted that rehabilitation had not been fully explored. In particular there was a failure to follow through with Mr Kelman's recommendation for further treatment. It is however notable that Mr Kelman did not mention pain as a barrier. The final paragraphs of his report were: 6. What are Elizabeth's current work restrictions? Are these restrictions injury related? Please can you clarify? As stated above bending, lifting and carrying of heavy weights such as boxes of food should be avoided. Her most ideal position is to work at a checkout where she doesn't have to do any heavy lifting and therefore an express checkout is most appropriate. 7. Is there any further treatment that Elizabeth requires? I would encourage her to continue her weight management programme together with continue her daily walking. I would add to this programme a 3 month course of Pilate's, this will teach her the principles of core stability. She will then have to make this her responsibility following that by which time I would consider that she will have returned to her work. [36] Mr Kelman's recommendations were for long term management of mechanical back pain and were not measures that needed to be finalised before assessment for vocational independence. Mr Prendeville also submitted that the vocational independence assessment was premature and that the appellant did not meet the precondition in s 110(3) of being likely to achieve vocational independence. I find no evidence to support that contention except the failure of the work trial. On medical grounds there was no reason to believe that she was not likely to achieve vocational independence. Decision [37] The wide difference of opinion between Dr Black and Dr Ruttenberg is of some concern. However Dr Black's opinion is not supported by evidence of prior medical opinions that the appellant is impeded by chronic pain that would prevent mental application to jobs of the kind that have been approved by Dr Ruttenberg. Essentially there is simply a difference of opinion. Dr Black has not been able to point to any objective evidence of the appellant's inability to concentrate sufficiently on job tasks. Pain and its effects on mental and physical functioning is a difficult area for assessment. If there had been a problem preventing full time work in sedentary occupations, it would have been likely to have attracted professional comment in the course of routine rehabilitation measures, and it has not. [38] The appellant's own assessment of her ability to tolerate the demands of work for 30 or more hours a week is only one of the factors to be considered and it cannot be regarded as a decisive factor. I accept that it deserves weight in this case because the appellant appears to be genuine and well motivated, with no display of illness behaviours. But the test is the responsible opinion of a duly appointed assessor who has seen the medical reports, examined the appellant and obtained from her an account of what she is able to manage on a daily basis. [39] The single area of evidence that supports the appellant's case is her failure to meet a planned increase in hours during a work trial six month before the assessment. The progress reports from the work trial do not shed any light on the real reasons for failing to achieve the desired result. Reports mention non-medical reasons for attending or leaving early. Ms Crook reported problems with sitting and reduced bladder control which she thought related to high pain levels. However there was no evidence from her GP and no independent commentary to explain a pain related barrier to completing the work trial. [40] Both Dr Ruttenberg and Dr Black looked at the required job tasks, and came away with opposing opinions. Dr Ruttenberg was shown Dr Black's opinion and he did not agree with it, mainly on the ground that no objective evidence had emerged of a significant degree of pain disability. The opinions and notes were derived from seven practitioners over three years. While further medication and exercise programmes were suggested, none of the practitioners had signalled an impediment to vocational independence. When Dr Ruttenberg assessed that material and the appellant's own account of her limitations, along with a physical examination, he was in a position to form a reliable opinion. In my view his opinion was expressed in a credible manner with sufficient detail to indicate that he had carefully taken account of relevant considerations. He eliminated ten job types as being unsuitable [41] Dr Black's assessment of the effects of injury related pain is based largely on the appellant's own account, taken at a time when she was contesting the vocational independence findings. The appellant's views are genuine but expressed in the context of contesting vocational independence. There is force in Dr Ruttenberg's response that there is no objective support. [42] Cases in which the Court has intervened to overturn vocational independence findings that have disregarded pain, are mainly those in which the impediment of pain has either not been considered by the assessor, or has been presented in a reasonable body of medical opinion or radiological evidence contrary to the opinion of the assessor. [43] In the present case, I consider that the assessor's commentary concerning pain is sufficient for the important purpose of determining vocational independence. I bear in mind the observation of Ronald Young J in Martin v ACC [2009] 3 NZLR 701 that the assessor's opinion does not have a pre-eminent position simply by virtue of the fact that it is an opinion of the appointed medical assessor. I accept that the evidence leaves a degree of doubt about Dr Ruttenberg's assessment of the effect of pain, but that is only because there have been two different views. The doubt is not supported by independent evidence and medical opinion, except Dr Black's opinion which is largely based on the appellant's own view. 44] On the whole of the evidence, I consider Dr Ruttenberg's assessment took into account all the relevant matters. It discussed the history of injury, the medical diagnosis, treatment and rehabilitation, the work trial and the appellant's tolerance for the levels of activity involved in each job. Apart from Dr Black's opinion, the evidence does not indicate that it is unsafe to rely on the assessment. After considering all the evidence, I prefer Dr Ruttenberg's assessment as the more cogent and persuasive opinion. [45] For those reasons the appeal is dismissed. Judge D A Ongley District Court Judge