Barwood v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2012] NZACC 168 UNDER The Accident Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. ACR 99/10) BETWEEN GAIL BARWOOD Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 1 November 2011 Appearances: Mr A R V Rowlett advocate for appellant Mr S Hack for respondent Judgment: 16 May 2012 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] This appeal concerns the respondent's decision that the appellant was able to engage in employment in which she was engaged when she suffered her covered personal injury. [2] Ms Barwood has been receiving abated weekly compensation for over 15 years. She was injured in October 1995 when she slipped while carrying photographic equipment, wrenching her right shoulder and her neck. At the time she was engaged in her hobby of sport photography, which she has now developed into self employed work. [3] In 2009, the Corporation began assessments in order to consider Ms Barwood's progress to vocational independence. After obtaining initial medical assessments, the Corporation considered that she probably had the ability to engage in her former employment. After questioning the medical assessor on various points, the Corporation decided that Ms Barwood did have capacity to return to her former employment and issued a decision to that effect. [4] The appellant says that the Corporation failed to take account of her condition of chronic regional pain syndrome (CRPS) and that it failed to ascertain the nature of her former employment and the job tasks involved in it. She says also that she was not informed of the purpose of the medical assessment and was deprived of opportunity to inform the assessor of the work tasks and her injury related limitations. Background [5] At the time of her injury, Ms Barwood was employed by the Inland Revenue Department. The exact nature of her job has proved difficult to ascertain. She says she had been employed by the IRD for some 23 years, predominantly in investigative tasks. She qualified with a BBS degree from Massey University while working with the IRD, and her position and salary in 1996 would have been above the position of an audit clerk. She stated in a later document: "My duties as both an investigative auditor and as part of the technical legal team involved a substantial amount of written work with the preparation of extensive reports and submissions for the Head Office legal team. There was some computer work although at that time the IRD was just in the early stages of moving/shifting/converting the emphasis from hand written reports, which were then typed manually by a typist, to reports that were typed by the investigator themselves on the computer directly. I was at that time associated with a section that was one of the last to be fully computerised and I was therefore in the very early stages of being trained in this computer work." [6] The respondent points to documents compiled in 1996 that described the appellant's position as an audit clerk. A medical certificate and an earnings certificate in 1996 described her occupation as "auditor". In the same year, a report by Dr Richard Seemann stated "She has worked as an auditor of stamp duties at IRD for 22 years". Again in 1996, a report by occupational therapist Jenny Marshall in 1996 stated "Gail has been off work from her job as a clerk for Inland Revenue Department since symptoms resulting from two injuries have made usual tasks difficult for her to perform". It is likely that those documents were not intended to describe the precise nature of her work and I find them of limited assistance. [7] In March 1996, Ms Marshall did an assessment report which she described as "An assessment of her work environment and job specifications .. requested to identify the tasks which Gail may be expected to do when she returns to her duties". This later assumed some importance when it was used in 2009 as a description of Ms Barwood's pre-injury employment duties. Ms Marshall's assessment did not directly address pre-injury tasks and was prepared for the purpose of a graduated return to work on limited duties. [8] Ms Barwood had also suffered a coccyx injury which was mentioned in the report, but it is not mentioned in later reports as a barrier to work and is not relevant to the 2009 assessment. [9] Ms Barwood continued to work until late 1996. She complained of an assault by a supervisor at work, and she was not provided with support to return to work, factors that probably contributed to her developing a persistent pain condition. Since leaving work with the IRD she has been receiving abated weekly compensation. She has been living in the UK for long periods of time, which may account for the lack of timely assessment and rehabilitation. Concerning the effect of the injury and the appellant's work duties, Ms Marshall wrote: "The upper body injury has produced diffuse symptoms with right thoracic, neck, shoulder and upper arm pain. Gail states that she is still having difficulty with rotational trunk movements and upper arm movements when she reaches across her body. She indicates that activities requiring hand or arm force are also difficult. She has had physiotherapy, with no improvement to her symptoms and is now receiving osteopathic treatment which tends to make her symptoms worse for a time after treatment. Gail's usual job is in 'Duties' where she is involved in regular tasks of actioning correspondence and files. This desk work is something she can manage without exacerbating her symptoms as long as she is able to change her position at frequent intervals and have the necessary regular rest pauses. Her concerns are about her ability to perform some of the rostered duties which her job also entails and which are also considered to be 'light duties' by her employers. The tasks of scanning, stamping, filing and actioning refunds were examined with respect to their likely suitability for Gail in her present state." [10] The report went on to describe the light duties. It did not enquire into the full nature of her pre-injury work. The report listed the physical movements of the light duties which included scanning and stamping documents and actioning refunds. Ms Barwood responded with written comments that only some of the duties presented difficulties and that the main problem was trunk rotation movement and upper arm movements when reaching for documents, under deadlines and without adequate rest periods. [11] A report by Dr Richard Seemann in April 1996 recommended a graduated return to work programme with appropriate rest breaks envisageng a return to full time work requiring up to six months in view of the chronic nature of the disorder. Dr Seemann thought that Ms Barwood may be in the early stages of what could be quite a prolonged disorder depending on her attitudes, bearing in mind that this was not a crippling arthritic condition and she should be able to live a full and active life. [12] In June 1996, Ms Barwood was examined by Dr Tony Chew, occupational medicine specialist. The pain condition was not improving. Dr Chew noted the employment problems which had by then resulted in redundancy from July 1996. He noted that the ACC medical advisor believed that the pain condition was connected with psychosocial factors, and that Ms Barwood had not attended a medical case review because she was then in the UK. He noted that a GP in England had diagnosed fibromyalgia, and that Dr Seemann had diagnosed a chronic regional soft tissue pain syndrome and had advised continuation with the rehabilitation programme and referral for a vocational assessment. Occupational physician Dr E Dryson had diagnosed a regional pain syndrome affecting the right upper quadrant. Ms Barwood then received occupational therapy intervention. Dr Chew described psychological factors and development of a chronic pain syndrome, as follows: "Her current incapacity relates to a specific injury event in 1995 when she strained her right shoulder. Aggravating her ongoing incapacity was job stress through personal conflict with supervisor at the IRD Palmerston North. Psychosocial stressors with respect to a break up with her partner and some problems with her daughter who is now separated from Gail and studying in UK miles away are risk factors contributing to her ongoing incapacity . Gail begins to show early signs of chronic pain syndrome. The pain has become self-sustaining and self-regenerating. It is an illness of the whole person and not a disease caused by the pathologic state of an organ system. Gail has developed a pain-related behaviour. She becomes maladaptive and her pain level is grossly disproportional to the initial minor strain of her right shoulder two and half years ago. The initial right shoulder injury has healed and no longer serves as an underlying pain generator. She has instead developed a poor pain coping mechanism with perceived limitation of functional capacity. Gail's maladaptive behaviour has medical, social, and economic consequences that greatly outweigh any somatic components of the injury." [13] This opinion appeared to mean that Ms Barwood's pain behaviour was more significant than her experience of pain. Dr Chew went on to state: "Gail's capacity for work is good once she can overcome the psychological pain barrier. Her functional limitations for work capacity is very minor in term of her physical health. She has only minor soft tissue pain in her neck and shoulders. She did not suffer from any major cervical spine dysfunctions. I have encouraged her to get on with intensive mobilisation programme to loosen up her muscle. It is important Gail takes responsibility for self- management. A gym-based physical conditioning by strength and aerobic training is advisable for reducing pain and increasing work stamina. She is already receiving some occupational therapy intervention with respect to relaxation technique, posture education and pain management strategies. Gail should embark on a gradual return to work programme as soon as is practicable. Contact with work helps keep motivation for return to full capacity in the future. Tasks should be variable to prevent constrained postures. Prolonged standing and sitting should be avoided. Gail is to keep a pain dairy noting the pain levels for all tasks. She is to record the nature and intensity of pain when carrying out different tasks. She must adhere to regular job breaks." [14] Dr Chew thus considered that the injury consequences could be remedied by appropriate therapy and a graduated return to work. Graduated return to work never occurred, although Ms Barwood did continue with her sports photography. [15] On 2 June 1999, Dr David Hartshorn, occupational medicine specialist, examined Ms Barwood and provided ACC with an impairment for an independence allowance. He stated that she currently had constant pain, varying in intensity depending on activity levels and types. He said that any activity involving static posture and any activity involving lifting the arms or writing or keyboard work will significantly flare Ms Barwood's symptoms. She described the pain as being predominantly across the upper parts of the shoulder, worse on the right side, radiating into the neck and down the proximal aspect of the right arm. In addition, she had a sensation of weakness in her right hand and would commonly drop objects in her right hand. Dr Hartshorn assessed a whole person impairment percentage of 20% and summarised: "Gail sustained an injury to her right shoulder and has subsequently developed a chronic regional pain syndrome. This has subsequently affected the range or motion in her neck and left shoulder. She is left with significant restrictions in both upper limbs and as such I have included the loss of range of motion in the left shoulder in her impairment. I have not included her neck impairmeet in this assessment as I feel her loss of range of motion in the neck is secondary to the affected muscles in the shoulder girdle." [16] The next document presented in the appeal is a report from psychologist Tom Neser in May 2003. Mr Neser found that Ms Barwood had reasonably good coping and self care strategies but lacked some strategies that could improve her pain management. She was resilient and positive in outlook. Mr Neser commented: "Gail herself indicates that she believes she deals with her pain experience well and has adapted to the restrictions that her injury places on her lifestyle. However, it is possible that in being protective of her injury that Gail tends to operate at a functional level lower than her potential. Gail herself disagrees with this, citing her involvement in activities relating to her photography and stressing that she does push herself to her limits. Further clarification on this from a medical point of view can most likely only be gained by means of a qualified orthopaedic opinion." [17] Mr Neser made a number of recommendations, but he did not consider Ms Barwood suited for participation in formal programmes because "her existing pain management abilities as well as her own uncertainties as to whether the potential benefits of participating in the course are sufficient to warrant the time spent". That seemed to mean that Ms Barwood was managing reasonably well and did not accept that a formal programme would be of benefit to her. [18] In May 2003, the appellant was examined by Mr Brian Otto, orthopaedic surgeon. Mr Otto reported to the Corporation with some emphasis on Ms Barwood's pain behaviour in avoiding using her right arm in a fully functional way. After describing the marked difference between clinical findings and subjective symptoms, Mr Otto said: "This means from a clinical standpoint there is a fairly major psychological overlay to the symptomatology, and I note that the term 'Chronic Regional Pain Syndrome' has been suggested, but I am reluctant to use that terminology requiring that there be identifiable pathology in the areas of complaint, that are clinically recognised, and have not been able to identify such changes in this case." [19] The Court's understanding of Chronic Regional Pain Syndrome from evidence in various cases, is that it is a classification of persistent symptoms that occur in a quadrant of the body when there is no identifiable pathology. Mr Otto's requirement of identifiable pathology as a basis for diagnosis of CRPS appears to be contradictory, or a rejection of the validity of the diagnosis. It has been said in some cases that CRPS is not a diagnosis, but is a classification in default of a diagnosis. But even if wrongly referred to as a diagnosis, it describes symptoms of real neuropathic pain and the description "diagnosis" is commonly applied. I would discount Mr Otto's opinion, because he did not accept a diagnosis that was almost unanimously accepted by other practitioners who examined the appellant. It is worth recording the conclusion that Mr Otto reached after rejecting the diagnosis of CRPS: "On a clinical basis, there are very few occasions when I have seen and examined individuals who are intelligent and highly qualified, have the opportunity of performing in a well paid professional career, and who exclude themselves on the basis of major upper limb dysfunction, where there is a paucity of organic findings that support that disability. Mrs Barwood's disability beggars belief, and there must be significant psycho- social factors entering into her description of 'absolute disability' which she made in recorded statements to the Commission. With her accounting skills she is perfectly able to re-enter into that type of work and contribute on an 8 hour working day, based on the clinical findings and information obtained at this review. The fact that she has not done so, and over a protracted 7-1/2 year period, must be viewed with some scepticism when earlier examiners have failed to identify significant pathology, and subsequent physical medicine examiners have resorted to the use of 'regional pain syndrome', again in the absence of clear underlying organic pathology, to explain the disability." [20] Mr Otto's scathing opinion probably reflects a conclusion that would reasonably be reached if CRPS or a similar neuropathic pain syndrome were not accepted as a valid diagnosis. It illustrates that the central problem in assessing Ms Barwood's work capacity is the effect of her diagnosed CRPS on her ability to work. When Ms Barwood received the report she wrote a five page challenge to its methodology and conclusions. There is no need to refer to that document because I put aside Mr Otto's opinion as being out of line with mainstream medical advice in this particular case. [21] In his written submissions, Mr Rowlett for the appellant noted that there were various disputes regarding vocational rehabilitation that were settled at mediation with an agreement for an up to date initial occupational assessment (IOA) and initial medical assessment (IMA) to be carried out in New Zealand. ACC agreed to contribute towards the cost of returning to New Zealand and the appellant was given a choice of assessors. She chose Dr Xiong but ACC made an appointment with Dr Hartshorn whilst approaches were made to Dr Xiong. Mr Rowlett noted that ACC wrote on 14 November 2008 stating "You will be aware that before we can commence Vocational Independence, we must first establish conclusively that Gail is unable to return to her pre-injury employment". Mr Rowlett replied to this letter: "In your latest letter, you refer to 'assessment of Gail's Vocational Independence under Section 89 of the Act' and go on to describe a process that appears to combine a determination of incapacity for employment (Sections 102 to 104) and assessment of vocational independence (Section 108). This is not what was agreed at mediation and in the IRP Please confirm, urgently, that the assessments will only be initial occupational and medical assessments for the purpose of assessing vocational rehabilitation needs and that the next step will be to develop an IRP." [22] Mr Rowlett was concerned to avoid a situation in which the appellant might be assessed for return to work without adequate occupational and medical input or a new IRP to consider suitable rehabilitative measures. ACC replied that the purpose of the initial assessments was to assess vocational rehabilitation needs, and that any recommendations would be discussed and agreed in a subsequent IRP. [23] An IOA was done on 27 February 2009. An aspect of occupational readiness was the ability to use a computer keyboard in a clerical or administrative situation. The IOA recorded that Ms Barwood stated that she enrolled in a computer training course in the United Kingdom and had completed two preliminary modules on literacy and mathematical testing, but she had not started the computer training which included, to the best of her knowledge, an introductory module and others on Word, Excel, and an accounting package. The IOA noted that she had basic familiarity with email and the internet, and that she would require a computer- training course in order to assist her develop the skills required to work as an audit clerk. The report used a work details sheet for Audit Clerk 221214, for which the work tasks were: "Assists Chartered Accountants, Associate Chartered Accountants and/or other financial professionals in areas such as: collection, analysis and interpretation of information on the financial standing, cost structures and trading effectiveness of organisations; audit and investigation activities; preparation of financial statements and reports for management, shareholders, and governing and statutory bodies; may assist with the evaluation of cost effectiveness and risks of operational processes, activities, policies and systems.' Work functions included: "Mental activities necessary include a high level of cognitive functioning with accounting communication, calculation, administration, research, analytical, data interpretation, organisational, planning, attention to detail, decision-making and reporting capabilities." [24] The match with Ms Barwood's skills was described in the IOA as follows: "Ms Barwood worked for the Inland Revenue Department for 23 years with approximately two years of this time involving audit work, which she described as 'the basic stages to investigation'. She also assisted audit department staff at IRD in her role as technical officer, advising on statutory and technical matters relating to the audit process. Ms Barwood's extensive experience with IRD has provided a sound foundation of knowledge regarding the income tax process. She has demonstrated an ability to work with various types of financial and statistical information ensuring a high level of accuracy and attention to detail through the stages of examination, verification and evaluation. Ms Barwood has gained a university degree in accounting further demonstrating her competence and aptitude for working with financial and statistical information. An entry level position as an audit clerk would be well within Ms Barwood's capabilities despite the fact she has not worked in this field for a number of years." [25] An appointment was made with Mr Neser for a pain management assessment. In a report dated 6 March 2009, he stated: "Ms Barwood has indicated that she is interested in learning to use the computer. This is strongly contraindicated with her current muscle profile in her neck and shoulders and any computer training should be delayed until she has learned to utilize these muscles in a more conventional manner. It is believed that Ms Barwood should be able to respond to treatment with some measure of improvement in function and reduction in pain." Mr Neser also wrote: "The key issue in this situation is that following Ms Barwood's original injury some 14 years ago she has developed a number of protective habits that have inadvertently resulted in her pain experience being maintained and to some extent worsened. Due to patterns of physiological tension being held in her upper body she has tended to overcompensate with her left side resulting in some pain on that side as well. It is possible that she does have at least one trigger point on the right hand side of her back. From a psychophysiological perspective it is clear that Ms Barwood has inadvertently developed a number of maladaptive bracing or tensing habits that help to maintain her current pain profile. It is highly likely that she has learned to recruit muscles on her left side for movement that should normally be carried out by muscles on the right hand side." [26] Those comments reflect interaction between the appellant's CRPS and her "psychophysiological" response. In fact, Mr Neser went on to describe a "pain disorder due to mixed medical and psychological factors". The pain syndrome itself was not amenable to treatment, but the appellant's response by way of guarding and muscle tension would seem to be open to pain management intervention in the course of a rehabilitation programme. Her willingness to accept some form of advice and intervention had been sidelined in the past. As at 2009 it was untested. Mr Neser's report described desirable education in cognitive reframing, relaxation training, stress management, coping strategies and biofeedback. [27] Mr David Brougham, orthopaedic surgeon, had assessed Ms Barwood in 1996. ACC asked for a further report and Mr Brougham again examined Ms Barwood in March 2009. He reported the following opinion: "It is my opinion that Ms Barwood's best fit diagnosis is that of a chronic regional pain syndrome of very long standing affecting her right shoulder'girdle including the neck. I think it likely that symptoms that have developed to an extent on the left are compensatory. I am of the firm opinion that no investigations are required. I think these only stand to blur the diagnostic boundaries and run the risk of somebody undertaking specific surgical intervention that will only worsen the situation. I can only accept that the adaptations that Ms Barwood has made to her life to allow her to cope with the ongoing discomfort are appropriate for her situation and would prefer to encourage her to use her upper limbs to the best of her ability in the knowledge that complete disability will never occur." [28] Mr Brougham certified that the appellant's symptoms had persisted because of CRPS and that there was a direct causative link with injury by accident. He recommended restrictions in work activites as follows: "On the basis of my comments above, I would have to recommend restrictions being those of significant limitation of use of the right dominant upper limb. In essence the presence of a chronic pain state limits the use of the right upper limb. Rehabilitative attempts to improve that are only likely to worsen the discomfort. I say this on the basis of having listened to other patients with this sort of problem. I am certain that the underlying cause is a significant over activity of pain fibre information from the region involved. To this end, I note that a functional capacity evaluation is planned. Certainly it has been my experience that patients such as Ms Barwood are made a lot worse by those examinations. Similarly, I have yet to see clear evidence of an objective outcome from their use. I wonder therefore why Ms Barwood is being subjected to that, having had one in the past." [29] This opinion is in stark contrast to the views of Mr Otto, also an orthopaedic surgeon, who declined to recognise CRPS as a valid diagnosis. Mr Otto considered that Ms Barwood should get back to work. Mr Brougham considered that work would only be possible if use of her right arm and shoulder was limited. [30] Ms Barwood was then referred to Dr Hartshorn for an IMA. He examined her and reported on 19 March 2009. Dr Hartshorn's opinion eventually formed the basis for the Corporation's decision that the appellant was fit to resume her pre- injury employment. Mr Rowlett had cautioned against using an IMA as a basis for a work capacity decision. Dr Hartshorn noted that there had been little in the way of specific rehabilitation or treatment during the past six years and Ms Barwood reported that that her right sided symptoms had remained largely unchanged. [31] He noted that Ms Barwood had suffered from persisting right upper quadrant pain ever since the accident and was experiencing some compensatory left sided discomfort. Rehabilitation interventions had failed to bring about significant symptomatic or functional improvement. Examination identified widespread tenderness to light palpation about the shoulder girdles suggestive of underlying central sensitisation. There was no evidence of focal neurologic abnormality. He continued: "Thus the current presentation is that of a persisting pain presentation affecting the neck and right upper quadrant with lesser severity symptoms also now affecting the left shoulder girdle, most likely mediated by underlying central sensitisation. This would fit with the previously described phenomenon of a chronic regional pain syndrome without evidence of autonomic involvement to meet the diagnostic criteria for a complex regional pain syndrome. At this time I believe there is little likelihood that any specific treatment or intervention will have any positive impact upon Gail Barwood's pain symptoms or overall level of function" [32] Dr Hartshorn advised against Mr Neser's suggestion of biofeedback. He said that it was likely that she would continue to experience pain into the future and the focus of rehabilitation should be to attempt expansion of day to day activities. In his opinion, central sensitisation was a major contributor to the mechanism of pain production. He continued: 'Gail's presentation therefore is characterised by persisting pain and pain related functional limitations. There has not as yet been, and there is unlikely to be, any identifiable injury related structural abnormality which constitutes a specific biomedical restriction to the performance of any type of work or out of work activity in Gail's case. Her functional restrictions therefore are entirely based upon her pain experience and her reaction to this. Her reaction to this over the years has been characterised by activity avoidance as evidenced by her marked muscular atrophy about the right shoulder. As outlined above the expectation is that of persisting pain into the future and as such expansion in day to day activity is reliant upon some change in approach or attitude on Gail's part rather than on any external medical or rehabilitation input. Gail's capacity to perform work activity in the face of ongoing pain is difficult to predict and is reliant upon a multitude of factors such as underlying pain, illness and injury beliefs, issues of motivation, issues of job satisfaction, and issues around being involved within the compensation system. What can be said at this time is that there is no strict biomedical restriction with respect to the performance of work activity as a photographer. It is generally true that neuropathic pain problems tend to be exacerbated by vigorous or forceful use for the affected area or by activity involving sustained static postures around the affected area. It is also clear that Gail has demonstrated a capacity to perform photography work on a self employed basis and there is no particular medical reason, with enhancement to factors around her pain management issues, that this cannot be further expanded. Likewise there is no particular medical reason why Gail could not pursue her work activity within the clerically based environment, or indeed within a retail based environment. It is my view therefore that there is potential sustainability in all of the identified work types. It is however extremely difficulty to predict whether Gail will successfully manage some adjustment of her approach to her now longstanding pain problem to the extent that she is able to expand into a full time capacity. In some respects she appears to have very fixed beliefs and therefore the prognosis in this respect must be somewhat guarded." [33] Dr Hartshorn's description of barriers to employment was a mix of neuropathic pain problems diagnosed as CRPS, and Ms Barwood's own responses and motivation. It is significant for the appellant's case that he described potential sustainability in the identified work types. They were Audit clerk, Accounting technician, Taxation consultant, Photographer, and assistant positions with a photographer. This was an initial assessment and was concerned with rehabilitation for work. Potential sustainability was the correct question at that point. The initial assessment did not justify a finding of present work capacity. [34] From Dr Hartshorn's assessment, ACC drew indications that Ms Barwood was already fit to return to work as an audit clerk. It will be remembered that there is some argument whether the pre-injury employment was as an audit clerk. Some physical aspects of the job are not contentious, but Ms Barwood's own description of her work involved more emphasis on compilation of reports entailing extended writing or keyboarding. [35] Mr Hack for the Corporation then wrote to Dr Hartshorn on 26 March 2009 asking for an opinion whether or not Ms Barwood is able to engage in her pre injury job of an audit clerk at Inland Revenue. He noted that "engage in" in this context means being substantially able to do the job, and continued: "Subjective issues such as job satisfaction, 'employee setting', background psychological state, illness/injury beliefs and availability of employment are not directly relevant to such an assessment." [36] While attaching a description purporting to be the relevant generic job description, Mr Hack advised Dr Hartshorn that the appellant would be able to access injury related pain management strategies if required in order to achieve sustained periods of computer based activity. He also mentioned that the attached job details sheet did not mention computer use as a particular activity of the work. [37] In reply, Dr Hartshorn noted that the job description did not indicate particularly forceful work tasks within the work environment, nor a requirement for work activity involving sustained static postures without an adequate opportunity to change position and rest on a reasonably frequent basis. He noted that the job description did not require any more than relatively brief and intermittent periods of keyboard activity. He concluded: "As such, and when excluding issues of job satisfaction, employee setting, background psychological state, illness and injury belief, as well as the availability of this type of employment, there appears to be no medical reason why Gail Barwood could not engage in her pre-injury job as understood from the enclosed documentation. It is acknowledged that this performance of her pre-injury work activity will be within the context of ongoing pain symptoms. However the nature of the tasks from a biomechanical and physical perspective is unlikely to result in substantial worsening of her persisting pain presentation." [38] This was an opinion that the job tasks would not stir up aggravated pain symptoms. It excluded background psychological state, and illness and injury belief, but recognised the existence of CRPS. As I read this opinion, Dr Hartshorn distinguished between the pain symptoms of the appellant's CRPS and the psychological response earlier described by Dr Chew as maladaptive behaviour. [39] ACC then arranged to assess Ms Barwood's functional capacity. Assessor Mr R G M Sellars of FCE Systems (NZ) Lid reported on 9 April 2009, including the following comments: "Her FCE results, as demonstrated, show that she has physical ability for less than sedentary work with marked limitations. I estimate that physically she is safely capable of at least light fulltime work at this level with no restrictions. . .. Current functional ability. She currently leads a physically light lifestyle and there is little in her clinical presentation to suggest that she is unable to use her arm for the normal activities of daily life. Disuse wasting of her arm and autonomic changes would be apparent if she was quite unable to do the light activities of everyday living. She demonstrates marked reduction of physical ability on formal testing even though her vocational and functional status remains the same as it was in 2003. . .. Accepted medical guidelines for the treatment of chronic pain syndromes. Remaining at or returning to normal work, with accommodations where necessary, is an accepted part of the medical management of chronic pain syndromes." [40] The report went on to state that the appellant could easily expand her business to full time with no greater physical exertion than in her usual day to day activities. That opinion is strongly contested, but is not directly relevant to capacity for pre-injury employment. The report recognised that there was a CRPS diagnosis but the report itself was confined to functional capacity in the sense of physical strength, range of movement, manipulative skills, fitness and pain levels. ACC Decision [41] ACC then issued its decision on 21 April 2009 that the appellant was fit to return to her pre-injury employment and her weekly compensation would end after 2 June 2009. [42] Mr Rowlett immediately responded with the complaint that the case manager had totally ignored assurances given to the appellant in response to concerns that the assessments should not be used for a work capacity determination. ACC replied that the IMA assessment had been required with the sole purpose of identifying suitable vocational rehabilitation, and that Dr Hartshorn had then made some points which resulted in ACC employing s 102 of the Act to determine incapacity under Section 103. In answer to further questions, Dr Hartshorn had confirmed that Ms Barwood was able to do her pre-injury work and that there were no disqualifying medical factors. He did not refer to any required vocational rehabilitation. [43] Among points raised by Mr Rowlett was a question why Dr Hartshorn's IMA had not been sent to Mr Rowlett to enable him to at least offer information relevant to the s 103 assessment. He alleged that the case manager deliberately circumvented him to avoid input on behalf of the appellant. Mr Rowlett also questioned how ACC came to regard the appellant's pre-injury occupation as that of an audit clerk. He then listed a number of questions that were referred to Dr Hartshorn for comment. [44] In answer to a question about obtaining proper information about pre-injury employment, Dr Hartshorn stated that all the necessary information was available when he wrote his report. Mr Rowlett questioned whether Dr Hartshorn was aware that Ms Barwood had tried to return to work in 1996 but failed. Dr Hartshorn stated that the events were clouded by employment issues and did not truly represent her ability to work. He was satisfied that he had made a proper assessment of her ability in 2009. Mr Rowlett asked a question concerning the personal factors that Mr Hack had excluded from relevance in the capacity assessment. Dr Hartshorn replied: "It is true to state that issues such as job satisfaction, background psychological state (anxiety, depression) and other beliefs surrounding illness and injury, particularly with respect to pain beliefs, have a significant impact upon the likelihoods of someone pursuing or continuing within a work environment given a specific medical problem, particularly one which has pain as a major symptom. These factors are, however, primarily one of perception and can have an impact upon the person's belief as to whether the job is achievable or positive for them in an overall context. As such, if someone finds a job is providing positive benefits for them they are much more likely to continue with this work activity despite the presence of persisting pain. In this regard, in the context of chronic pain conditions, these factors are very important in whether someone will or will not pursue a certain vocational direction. They are not, however, determinants of whether the job is or is not possible for this person, but determinants of the likelihoods that this person will or will not choose to pursue the work. Thus, excluding these factors is a somewhat neutral position. If these factors were favourable, in other words Ms Barwood was extremely keen to pursue a certain type of work activity, enjoyed the work environment and her co- workers, felt supported within the work environment, and was confident that her work was not going to result in any detrimental affect on her health this is much more likely to be a job that she will choose to pursue." [45] In short, Dr Hartshorn viewed the "subjective issues" as factors that could well determine whether a person would be successful in taking up work, but not as factors bearing upon the person's capacity for work. He explained the distinction with reference to motivation, pain beliefs, pain management and confidence. In answer to the next question, concerning impaired function through pain, Dr Hartshorn replied: "The crucial issue in this question is that the restriction in function over the years has primarily resulted from Ms Barwood's illness and injury beliefs leading to a pattern of activity modification and activity avoidance. The injuries themselves in terms of structural changes relating to the specific injury events have not primarily caused the functional limitations and, as such, the physical restrictions Mr Rowlett mentions are primarily due to the factors discussed in the previous assessment." [46] On one interpretation, this paragraph was close to Mr Otto's view that the appellant exhibited pain behaviour and should get back to work. The answer, that functional limitations primarily resulted from "illness and injury beliefs" appears to deny the effect of neuropathic pain. But Dr Hartshorn had accepted the diagnosis of CRPS, with neuropathic pain. He did not appear to regard Ms Barwood's pain as a subjective phenomenon caused by injury beliefs. My understanding of his answer is that Ms Barwood's injury beliefs brought about restrictions in function in terms of behaviour, but that they were not physiological or neuropathic restrictions caused by her CRPS. She would be likely to be able to manage her pain and return to work but for her entrenched belief that work would aggravate her pain. Amplifying this statement in answer to another question, Dr Hartshorn wrote: "The assessment of low likelihood of pain exacerbation of a significant nature is based upon the fact that people with centrally mediated pain disorders tend to experience less pain exacerbation when engaged in activities of a light physical demand that provides them with some task and postural variation. It is likely that any pain exacerbation should be less prominent and more manageable currently than it was in 1996 given the fact that Ms Barwood has had extensive pain management intervention in the interim. This enhancement of her pain management strategy should improve the likelihood of expansion of activity without substantial pain exacerbation". [47] That statement corresponds with the comment in the functional evaluation report that "Remaining at or returning to normal work, with accommodations where necessary, is an accepted part of the medical management of chronic pain syndromes". [48] Mr Rowlett then asked ACC to put another question to Dr Hartshorn, essentially enquiring whether Ms Barwood was ready to return to former work without restriction. He forwarded a statement written by Ms Barwood and describing her pre-injury employment and commenting on a number of aspects of the assessment. Mr Rowlett submits that the appellant's position with IRD was as a Specialised Technical Officer. He renewed his request for ACC to ask Dr Hartshorn to review his opinion of capacity in light of Ms Barwood's written description of her pre-injury duties. ACC did not assist and Mr Rowlett submits that the respondent is forced to rely on an assumption that Ms Barwood was an audit clerk. [49] Mr Rowlett referred Dr Hartshorn's opinion to Mr Brougham for comment. Mr Brougham disagreed with Dr Hartshorn. He referred back to Dr Hartshorn's own comment that "neuropathic pain problems tend to be exacerbated by the vigorous/forceful use of affected areas and/or activities involving sustained static postures around the affected area". He wrote: "I believe there is also general agreement that use of an area affected by a chronic regional pain syndrome will not cause harm but may result in sufficient discomfort to make use difficult. The point of difference in this case would appear to be in relationship to the type of work that Ms Barwood can return to. The point of difference seems to have risen because of the Corporation's didactic request that Dr D Hartshorn ignore job satisfaction, employee setting, background psychological state, and illness/injury beliefs. To do this one artificially must not consider the patient as a whole person but rather as an anatomical structure that has no feeling. The other belief would appear to be that if Ms Barwood returns to her previous work at Inland Revenue that this will not require any computer work. Certainly one could see that that may have been the case in 1996 but I would be astounded if that was the situation in 2009. I struggle with the relevance of taking a job sheet from 1996 and applying it to the current year." [50] Mr Brougham advised that Ms Barwood should expect a period of work hardening in a graduated fashion, combined with a job site assessment to ensure that she could perform the required tasks. In his opinion, If Ms Barwood was thrown back into her previous environment it would be an abject failure. He would at least expect her to have an allowance for short rest periods and be provided with pain management programmes to reinforce that use of her upper limbs would not worsen her structural condition. Mr Brougham did not appear to reject the prospect of return to work, but he entertained the possibility only on the basis of a graduated and supported process. [51] Dr Hartshorn responded to Mr Brougham's opinion. He denied the need for pain management intervention because it had been explored with no indication from practitioners that further benefit was likely to be achieved. Concerning graduated return to work, he noted that Ms Barwood had been doing part time work for a number of years. In that sense she had been performing part-time work activity as a sports photographer and was engaged in a workplace performing activity involving utilisation of the right upper quadrant, and demonstrating capacity. Dr Hartshorn considered that a graduated programme may be desirable but was not necessary. Law and submissions [52] The assessment of capacity for pre-injury employment is authorised under s 102: 102 Procedure in determining incapacity under section 103 or section 105 (1) The Corporation may determine any question under section 103 or section 105 from time to time. (2) In determining any such question, the Corporation - (a) Must consider an assessment undertaken by a registered medical practitioner; and (b) May obtain any professional, technical, specialised, or other advice from any person it considers appropriate. [53] The assessment may be done from time to time, and does not require initial assessments or a rehabilitation plan. There is no prescribed form for assessment as there is for a vocational independence assessment. The only requirement is that the Corporation must consider an assessment done by a registered medical practitioner. The question for the assessment is found in s 103: 103 Corporation to determine incapacity of claimant who, at the time of incapacity, was earner (2) The question that the Corporation must determine is whether the claimant is unable, because of his or her personal injury, to engage in employment in which he or she was employed when he or she suffered the personal injury. (3) If the answer under subsection (2) is that the claimant is unable to engage in such employment, the claimant is incapacitated for employment. [54] In Irving v ACC (High Court, Whangarei, AP 53/01, April 2003) Laurenson J, held that the assessment was not task specific and could be applied to a wider sphere of pre-injury work. In that case the appellant could not work as a truck driver, but could work in the field of driving. Laurenson J approved Judge Beattie's interpetation of the question in Lamb [1998] NZACC 74 when he decided that a nurse employed pre injury as a geriatric nurse would be returning to the same employment if she returned to the general job of nursing. Laurenson J identified and approved the principle of law decided in Lamb, describing it at para [26] as follows: "... the question to be determined is whether the basic elements of, or skills required to perform the specific task, are peculiar to that specific task, or are they such that they can be applied in a wider sphere of work engaged in or carried out for the purposes of pecuniary gain or profit. If the answer is the latter, then it is possible to define a field of employment within which it can reasonably be said a particular claimant can work, engage in or carry out for the purposes of pecuniary gain or profit. [55] Irving was decided under provisions in s 37A of the 1992 Act which contained the same test for capacity to "engage in employment". Under the 1998 Act the test was ability to engage "in every part of every employment". The difference is reflected in the principle stated by Laurenson J that "consideration is not to be restricted to an assessment of the specific task" or as Mr Hack put it the test is not task specific. Mr Hack referred by way of further example to cases including Trask [2006] NZACC 68 where this Court found that the claimant, who was formerly an unqualified caregiver and social worker, was able to engage in the work type of social worker although her pre-injury job required physically heavier tasks. Mr Hack submitted that the appellant's submissions and her statement at review appear to be predicated on her resuming exactly the same employment with the same employer she had before. This is not what is contemplated by the legislation or the relevant case law. He submitted that preference should be given to the contemporaneous entries in 1996 and shortly after describing her occupation as an audit clerk. Mr Hack noted that the appellant was not averse to responding to reports and correcting errors. Finally, he submitted that no material differences have been shown in tasks and functions between auditor and audit clerk. [56] The question of the basic elements and skills to be applied in a work capacity decision is a question of fact. In the present case there is a dispute whether the appellant's pre-injury job involved basic repetitive tasks such as stamping, scanning and filing, or whether it required prolonged concentration in compiling and writing various kinds of reports, including a significant amount of keyboard work. [57] Mr Rowlett submitted that the Corporation was mistaken in requesting Dr Hartshorn's opinion whether the appellant was substantially able to do the job. He said that is too general and vague and does not answer the enquiry whether she was able to engage in the employment. He submitted that Dr Hartshorn should have been asked to specify any tasks that the appellant could not carry out in case they were an integral part of the employment and its environment. Also the apparent instruction to ignore job satisfaction, employee setting, background, psychological state and illness or injury beliefs appears to be interpreted by Dr Hartshorn as a direction to ignore pain. [58] Mr Hack submitted that capacity for work, like vocational independence only requires an assessment of whether or not the claimant can engage in the work. It does not concern job satisfaction or subjective considerations that may encourage or discourage the claimant from engaging. He submitted that if non-injury issues are to be discounted for vocational independence as indicated in Bernebei [2009] NZACC 192 and other cases, then non-injury factors such as work satisfaction and illness beliefs are, if anything, less of an issue for assessment of incapacity than for vocational independence. Nothing in section 103 indicates that these matters are an issue. [59] There is a question of the appellant's ability to do computer keyboard work. Mr Rowlett submitted that the job activity sheet referred to did include significant computer work if read properly. It states that the work involves frequent sitting at desks and computers and goes on to include frequent, constant repetitive hand and finger movements are required when using computers, writing or reconciling data. It can be taken from these that frequent sitting at a computer would include frequent use of it. Also, the IOA report recommends computer training as needed for the option of Audit Clerk which confirms that computer work would be required. I am not sure that this submission assists the appellant because Dr Hartshorn's commentary on Audit Clerk details sheet did include sustained computer based activity. His full comment on it ws as follows: "Audit Clerk. 221214. This job has a sedentary physical demand and as such will avoid any requirement for vigorous activity with the right upper quadrant. The job is however likely to have some requirement for computer based activity and sustained periods of this will require some some enhancement of current pain management strategies and approaches. There is however no specific biomedical restriction to the performance of this type of work activity. The extent of work able to be performed in this type of work will largely be a result of the complex interaction between Gail Barwood's pain experience her pain management strategies and other issues such as job satisfaction, background psychological state and illness and injury beliefs. There is no particular medical reason however why full time work activity could not be achievable should these other factors be favourable. Gail Barwood was concerned that the performance of this type of work activity would be performed in an employee setting and provide significantly less flexibility with respect to work hours and fluctuation of symptoms. She was concerned regarding the extent of computer activity required." [60] The respondent says that Dr Hartshorn was informed of the need for sustained periods of computer use and listened to Ms Barwood's concern that she would not have the necessary flexibility to deal with fluctuation of symptoms. Mr Hack submitted that Dr Hartshorn's reports are more thorough than Mr Brougham's short report in July 2009, and they are corroborated by other material on the file, for example Dr Seeman's medical assessment and Mr Sellars' functional capacity evaluation. Furthermore Mr Brougham did not state that the appellant could not do the work, but that she could not engage without a graduated introduction. It was submitted that the appellant has not produced any medical evidence which contradicts that of Dr Hartshorn, or the other medical evidence on file. Her self assessment cannot override the specialist medical evidence in regard to this enquiry. She has been living independently in the United Kingdom, and was able to travel widely and follow motor racing engaging in her activity of motorsport photography. The reliable evidence is that she could probably engage in her pre injury employment. [61] Mr Rowlett submitted that ACC should not have made a work capacity decision 13 years after the appellant's injury without compelling evidence of recovery from injury or a full work trial. Furthermore, after Mr Rowlett had requested that the assessment report would not be directed to capacity for pre-injury employment, ACC used Dr Hartshorn's assessment for that purpose, and directed further questions to Dr Hartshorn without first forwarding the assessment to Mr Rowlett. The respondent says that the assessments provided information putting ACC on enquiry concerning the appellant's ability to resume her former type of employment, and that it was then entitled to follow up that line of enquiry. [62] Mr Rowlett submitted that ACC decided wrongly, and without any proper enquiry, that the appellant had worked as an audit clerk. He submitted that the case manager had pre-determined that ACC would use the IMA as a basis for a capacity decision, and had also decided to determine capacity as an audit clerk. The appellant was given no opportunity to describe her pre-injury duties, and submitted to Dr Hartshorn's medical examination without knowing that part of the purpose of the assessment was to decide whether she was able to engage in her pre-injury employment. If she had known, she could have described her former duties and her injury related barriers to engaging in that were. She was effectively denied a hearing. Mr Hack submitted that there was no predetermined conduct by the Corporation, but that it was alive to the possibility that the appellant might be fit for returning to similar work, and was entitled to act on information that it received from Dr Hartshorn and then to request his opinion on the capacity question under s 103. He submitted that the appellant was given a full opportunity to put further information to Dr Hartshorn. [63] Mr Hack submitted that the alleged unfairness of the assessment is not a relevant consideration. The opinion was sought from Dr Hartshorn after he indicated in his IMA that the appellant could probably engage in her pre injury job. Dr Hartshorn was supplied with all relevant information in regard to her pre-injury occupation. No other procedure is prescribed for section 103 determinations and an indication of flexibility is that the Act was amended in 2010 to allow ACC to obtain an opinion from nurse practitioners in regard to this question. Mr Hack submitted that the appellant was afforded opportunity to provide comment and information to Dr Hartshorn both during the consultation and afterwards through her advocate. She took full advantage of posing various questions and putting various issues to Dr Hartshorn who responded fully to all enquiries. ACC eventually declined to respond to further enquiries, advising the appellant that the matters would be dealt with at review. [64] Mr Rowlett submitted that the result was a misdirected assessment for a fictional pre-injury position of an audit clerk, based mainly on a workplace assessment by Jenny Marshall in March 1996 which listed selected light duties that Ms Barwood was to perform for nine hours per week as part of her work trial. It was not a full description of her pre-accident duties and was never intended to be used for this purpose. It was submitted that the authoritative source of information would have been the IRD, but no enquiry was made. Mr Rowlett also stated that the appellant had enquiry of IRD, but they no longer had relevant records. He submitted that it would be extremely unlikely that someone with a university degree and 23 years service with IRD would be in the entry level position of audit clerk. The appellant's own description of her work was the best available evidence. [65] Mr Hack submitted that Dr Hartshorn commented on the correct job profile, tasks and functions. Physical tasks were reliably derived from a work site assessment from March 1996 which included a description of the appellant's pre- injury job tasks. However the claimant does not have to have exactly the same capacity as she had before her injury, and the assessment does not require exactly the same job tasks but is generic for an audit clerk. Discussion and decision [66] The appellant was diagnosed with a chronic pain syndrome in 1996 and has since shown no improvement in her pain condition. She has been assessed for pain management, but has had no intervention and has adopted a mode of living that accommodates her pain condition while she works part time at an occupation that she enjoys. She says that her part time work as a sports photographer could exacerbate her pain, but she has developed suitable strategies. A functional capacity evaluation in 2009 confirmed that her condition had not improved and to some extent had worsened. [67] The Corporation embarked on interim occupational and medical assessments for the purpose of rehabilitation an vocational independence. On obtaining the medical assessment from Dr Hartshorn, the Corporation perceived a chance that the appellant had capacity to return to her pre-injury work, or work of a similar kind. It then asked Dr Hartshorn for further medical information bearing on capacity for pre- injury employment. [68] Mr Rowlett had already requested that the assessment report would not be directed to capacity for pre-injury employment. ACC then directed its further questions to Dr Hartshorn without first forwarding the assessment to Mr Rowlett. The respondent says that the assessments provided information putting ACC on enquiry concerning the appellant's ability to resume her former type of employment, and that it was then entitled to follow up that line of enquiry. I accept the respondent's submission that, once notified of the possibility that the appellant might be fit for returning to similar work, it was entitled to act on information that it received from Dr Hartshorn and then to request his opinion on the capacity question under s 103. Capacity for pre-injury employment is not a basis for vocational independence and there was good reason to look into it as a separate question. I accept that the appellant was eventually given a full opportunity to put further information to Dr Hartshorn. There was no unfairness that would have misled Dr Hartshorn or prevented the appellant having relevant information considered by him. [69] The main problem with the respondent's decision is that it was made without a recent rehabilitation plan and was a determination that the appellant already had the ability to engage in that work. [70] The concept of engaging in work implies regular full time work. I accept for the purposes of this decision that employment for the purpose of s 103 is equivalent to the vocational independence benchmark of 30 hours per week. [71] The first step was to define the appellant's pre-injury employment. In accordance with the authorities of Irvine and Lamb, the test is for work of a similar kind. The main attributes of the appellant's pre-injury job were that it was sedentary, involving some manual tasks, employing acquired skills in taxation and auditing with the need for a level of concentration and accuracy. In the modern world it would inevitably involve keyboard skills for text and data processing or reporting. The appellant says that she had to write reports, at that time in longhand, but now using a suitable computer application. [72] Due weight must be given to the appellant's own description of her job tasks because in this case there is no information from the employer and the contemporary information concerned light duties for graduated return to work. [73] I do not find that there is a significant difference between the appellant's description of her duties and the duties of an Audit Clerk, but I accept that she was employed in a senior position. Work details sheet 221214 included work tasks of analysis, reporting, investigation and preparation of financial statements. It stated "Mental activities necessary include a high level of cognitive functioning with accounting communication, calculation, administration, research, analytical, data interpretation, organisational, planning, attention to detail, decision-making and reporting capabilities". The functional requirements generally seem to include levels including a senior audit or accounting employee. The difference is likely to be in qualification, experience and expertise. I think it likely that the proficiency expected in a senior position could be affected by physical impairment in processing information including keyboarding. [74] There has been no measure of the computer activity required of an audit person in a senior position roughly equivalent to the appellant's pre-injury employment. The appellant has had no trial for work in such a position, her only work experience in the last 15 years being sports photography which bears no useful relationship to taxation auditing. [75] The appellant's ability to do computer keyboard work has not been tested. Since her injury, she has not engaged in employment involving keyboard work for writing reports with text and financial information. I accept that her pre-injury level of competence exceeded the routine tasks of filing, stamping and scanning that were assessed in the Marshall report. I accept that the job activity sheet for Auditing Clerk did include the possibility of significant computer work, and it should be concluded from the appellant's own description of her pre-injury employment that she would be required to prepare documents, which in the modern work setting is likely to require keyboard work as a significant part of the job. The IOA in February 2009 noted that the appellant's level of computer literacy was confined to emailing and using the internet, and that she would require a computer-training course in order to assist her develop the skills required by work type 221214. [76] When interrogating Dr Hartshorn in a letter of 26 March 2009, Mr Hack asked him to note that the appellant's pre-injury job did not include significant "or indeed any" computer work and the current job details sheet did not mention this as a particular activity of the work. That was attached to the comment that the appellant would be able to access injury related pain management if required for sustained periods of computer based activity. I have formed a different view of the appellant's pre-injury work. It is no small matter. The Corporation elected to assess capacity without a rehabilitation plan after the occupational assessment had flagged this need. In recent years, since the appellant's last employment with the IRD, there has been an extensive change in the expectation of keyboard skills in various forms of employment. It would be expected that the need for training that was signalled in the initial occupational assessment would at least be explored, and would be assessed in relation to the appellant's pre-injury employment and provided to her by the Corporation. [77] Mr Rowlett for the appellant has submitted that the appellant needed appropriate computer training and a graduated return to work. It is of course clear that the preferable course would be a graduated introduction with accommodation to meet the needs of her pain condition. But there is conflicting evidence whether that is necessary. Dr Hartshorn considers that the appellant has the ability to work as an audit clerk, including keyboard work, while managing her pain condition with a level of workplace adjustment that could be expected of a reasonable employer. Mr Brougham disputes that view and considers that nothing could be attempted without a graduated introduction. [78] I will return to that point after considering the question of psychological factors standing in the way of returning to full time work. [79] The causative link between the appellant's covered injury and her pain condition has not been questioned. There is little evidence concerning the effect of the appellant's persistent pain on her ability to work full time. In the immediate post-accident period, and during assessment by Dr Hartshorn, the focus was on physical requirements of arm and shoulder movements. The investigations did not focus on the overall job prescription including keyboard activity. [80] The appellant's pain is described as centrally mediated neuropathic pain. It is associated with an unexplained disorder of neural functioning affecting her upper right quadrant and apparently satisfying the diagnosis of chronic regional pain syndrome. There is no pathology apparent on radiography. The diagnosis of CRPS has been adopted by a number of specialists and was accepted by Dr Hartshorn who advised the Corporation in 2009 that the appellant was fit to return to her pre-injury employment. The medical evidence supports the diagnosis of CRPS, but there is conflicting medical information concerning the probable effect of the pain syndrome on the appellant's functioning if she were to attempt to return to work in a clerical position equivalent to her pre-accident employment. [81] The decision in this case requires determination of a question of law, whether ACC's direction to the assessor to exclude psychological factors was the correct basis for a s 103 decision of capacity. [82] The Court has some experience in dealing with evidence of CRPS, but of course the decision rests on the evidence presented in this particular case. None of the evidence attempts to explain the process and effect of CRPS. The pain is described as neuropathic, longstanding and persistent, associated with central sensitisation. It is not necessarily a psychologically mediated perception of pain, but is real pain caused by neural dysfunction but without any identifiable pathology. The respondent has not argued that the CRPS does not have cover. The importance of the CRPS diagnosis is that the appellant suffers real pain in her right arm and shoulder. [83] But the appellant also has pain beliefs which do not appear to be part of her CRPS. The medical advice is that effort resulting in pain will not cause injury. Assessors have described pain beliefs which are a disincentive for the appellant to engage in full time work. Those beliefs originate because of the appellant's experience of pain. They do not constitute a mental injury and I find that they are not part of injury related barrier to employment. [84] Dr Hartshorn accepts that the appellant may not be able to return to work as an audit clerk because she has entrenched pain beliefs that she will probably not relinquish. There is considerable medical evidence to support the view that the appellant's pain beliefs are the real barrier to resuming full time work. In my view that is not a factor that the Corporation is required to take into account in considering medical opinions on the question of capacity to work. [85] Mr Brougham described the difficulty as artificially to consider the patient not as a whole person but as an anatomical structure that has no feeling. That is a not unrealistic way of describing the s 103 assessment question. The question is solely one of injury related incapacity. It concerns the physical and mental consequences of injury, and not the psychological reasons for avoiding full time work. [86] From the respondent's standpoint, it is unacceptable that a claimant, who has sustained a relatively minor physical injury, should remain for 15 years on abated weekly compensation while doing personally preferred part time work and making no attempt to engage in rehabilitation for full time work matching her general skills, training and experience. But the narrow issue in this appeal is whether the appellant is unable, because of her personal injury, to engage in employment in which she was employed when she suffered the personal injury. The Corporation decided not to assess her for vocational independence, but made a decision based on ability to engage in pre-injury employment, without exploring further rehabilitation. [87] In very general terms, the appellant has been assessed on the basis that she has the skills and experience to work as an audit clerk, and that in Dr Hartshorn's opinion the work is not of a kind that would aggravate her chronic pain symptoms if she adopts practical ergonomic precautions. That is very much a medical opinion based on Dr Hartshorn's examination of the appellant, knowledge of her history and medical judgment of the effect of a work environment on her chronic pain syndrome. In his reply to Mr Hack in March 2009, he advised that the job description did not require more than relatively brief and intermittent periods of keyboard activity, and that keyboard activity was not described as a significant proportion of the work task. [88] I find that the functional aspects of the job have not been adequately assessed with regard to the generic work of an auditing clerk with responsibilities of a senior employee with a tertiary qualification. Dr Hartshorn concluded that the nature of the tasks from a biomechanical and physical perspective were unlikely to result in substantial worsening of the appellant's persisting pain presentation. He may well be of the same opinion if a more demanding keyboarding requirement is considered, but he was not asked that question and the Court cannot guess what his answer would have been. [89] Mr Brougham's concerns were that some employment tasks could aggravate the appellant's pain symptoms. Because of that concern, he advocated a work trial or assessment, further consideration of pain management, and a graduated return to work. He did not definitively state that the appellant could not perform the work tasks. He questioned any assumption that the job would not include computer work, but he did not give specific advice concerning the appellant's ability to manage the functional aspect of computer work. He may have considered that to be part of the need for a work trial. Dr Hartshorn's answers were that Mr Neser did not recommend any further "multidisciplinary pain input", and that the appellant had already demonstrated ability for part time work, so that a work hardening process was not necessary. [90] The Court is required to consider two conclusions, first whether Dr Hartshorn's opinion should be preferred over that of Mr Brougham, and secondly whether Dr Hartshorn does express a valid opinion matching the appellant's capacity to work with the tasks that would be involved in work similar to her pre-injury employment. [91] Mr Rowlett submits that Dr Hartshorn's opinion is wrong, or at least lacks transparency, in the degree to which he has excluded psychological factors. That is to say it is not clear whether he has excluded the appellant's CRPS, or whether he has accepted the pain and functional consequences of CRPS and excluded psychological barriers such as pain beliefs which affect motivation rather than functional ability. In answer to a written question from Mr Rowlett, Dr Hartshorn viewed the "subjective issues" as factors that could determine whether a person would be successful in taking up work, but not as factors bearing upon the person's capacity for work. He explained the distinction with reference to motivation, pain beliefs, pain management and confidence. [92] I am satisfied from the evidence that Dr Hartshorn's opinion should be preferred on the question of excluding psychological factors. The question is the appellant's ability to engage in employment, not her motivation or beliefs. [93] In this judgment I have considered the pain question at some length, but the deciding factor is the combination of arm and shoulder pain and the untested ability of the appellant to carry out tasks involving long periods of keyboard work. I have rejected the appellant's argument that psychological factors such as pain beliefs should be included in assessing her ability to work. I accept however that the respondent has not properly assessed the work tasks of a senior audit position in an organisation such as the IRD, and in particular the expectation of keyboard proficiency. Before making a capacity decision under s 103, the Corporation did not properly address the need for rehabilitation. The result was an assessment based on incomplete information. [94] For those reasons I find that the assessment was flawed. Therefore the appeal is allowed. The decision of the Reviewer is quashed and the Corporation's decision of 21 April 2009 is set aside. The appellant is entitled to continuation of weekly compensation. [95] The appellant will have costs of $3,000 and reasonable disbursements. [96] There is also an appeal against refusal of costs for two appearances at review. Given the relative complexity of issues in the review and the time that would inevitably have been taken in hearing the matter, I consider that costs should have been awarded for both appearances. I direct the respondent to settle those costs accordingly. [97] Finally, I note that this decision was overlooked when completing other appeals heard in November 2011. Unfortunately the oversight was not brought to my attention until recently. I apologise to the parties for the delay. Judge D A Ongley District Court Judge