Saul v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON DECISION No. S . /2009 UNDER The Injury Prevention, Rehabilitation and Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. AI 309/08) BETWEEN GARRY SAUL Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 3 December 2008 Appearances: Mr B Thompson for appellant Mr S Hack for respondent Judgment: 21 January 2009 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] The question in this appeal is whether a vocational independence assessment omitted to address an essential feature of the appellant's history. [2] Mr Saul had back pain at various times related to his work as a stone mason. In 1984 he suffered a sudden onset of back and leg pain when getting out of the bath. He had a disc excision and he later sustained further domestic injuries resulting in spinal damage requiring surgery. His condition stabilised but he did not resume full time work. He continued with light part time employment and claimed that he experienced such pain after working about four hours in a day that he could not possibly resume full time work. The reports [3] An extensive documentary history has been presented to the Court. It is not necessary to refer to the reports in full. The main focus concerns the conflicting opinions regarding the appellant's ability to work full time, and comments that have been made by health and rehabilitation professionals in arriving at those opinions. [4] . Mr Saul was certified as unfit for full time work from about 1984 until 2001 when Catalyst, as the respondent's agent, undertook the assessment process for vocational rehabilitation and . eventual assessment for possible vocational independence. The opinion that is challenged in this appeal is a vocational independence medical assessment made by Dr David Waite on 20 November 2007. In view of the long history and consistent reports by Dr Fong, orthopaedic surgeon, supporting the appellant's incapacity, Mr Thompson for the appellant submitted that Dr Waite's assessment failed to give reasons to explain why he reached a different conclusion from the longstanding opinion held by Mr Fong. [5] The appeal does not call for a decision reached by balancing the various medical views. The vocational independence occupational assessment was obtained by the Corporation in accordance with the prescribed statutory process and the challenge to the Corporation's decision based on the assessment must rest on a demonstrable flaw in the assessment. Mr Fong's opinion 6] Mr Fong supported the appellant in his belief that he could not increase his hours of work. Mr Fong's earlier letters described the diagnostic information and symptoms of spinal damage, and the outcomes of treatment and surgery. After the bath incident Mr Fong operated and excised the appellant's 14/5 disc in February 1985. After a lawnmowing injury in February 1989 a CAT scan confirmed a substantial large left sided disc protrusion at the L4/5 level. Mr Fong performed a further laminectomy in August 1989 and excised the protrusion on the left side. Mr Fong then reported that the appellant's left sciatic pain was completely cured. In February 1990 Mr Fong provided a permanent disability report to ACC in which he reported that Mr Saul's back was still giving him "some minor problem although the sciatic pain was cured by the laminectomy". He described the disability as: "... neurogenic low back pain with moderate pain and stiffness aggravated by heavy lifting with necessary modification of activity to be 20%, i.e. his permanent disability remains unchanged since the previous permanent disability report of 1 1/7/86." [7] After another injury in December 1990, Mr Fong wrote to the Corporation as follows: "Post operatively his left sciatic pain was improved and he was able to return to work without any problems until he hurt his back again in December 1990 when he again hurt his back, this time with pain down his left leg. He was treated conservatively with some improvement, however the pain recurred towards the middle of 1991 and he was admitted to Hutt Hospital on 28/5/91 and was in continuous back traction for 8 days with good improvement. He was able to be discharged, however with some residual limitation and persistent pain. I last saw him on 27/8/91 still having some residual back pain and unable to return to work. With this patient's history and taking into account the laminectomy, I advised that he should refrain from any heavy physical work, particularly repetitive bending and lifting. He would be ideally suited to a job which allows him to sit down from time to time and also to get up and walk around to ease his back pain, but he understands that such jobs are a bit difficult to come by these days." [8] At that time, the question of full time work was not being addressed. The report was limited to the nature of work that the appellant could sustain, but not to his endurance. In October 1992 Dr Fong wrote to the Corporation: "It is fairly obvious that with this ongoing problem Mr Saul would not be able to do strenuous physical work or repetitive work because of his lumbar spinal problem. However, with appropriate help and rehabilitation, hopefully he can be rehabilitated back into some gainful employment." 9] In September 2000 Dr Giresh Kanji made an independence allowance assessment of 10% whole-person impairment. In November 2000, Mr Fong also provided an independence allowance assessment, agreeing with the impairment of 10%. He described the appellant's limitations as follows: "His present limitations is that he has difficulty standing for more than 20-30 minutes and walking for a similar period of time aggravates his back and, walking for more than 30 minutes his right leg feel heavy and he tends to drag the right leg. He still suffers from constant pain in his back and has symptoms radiating down both legs. This is associated with muscle spasm. At home he is limited to what he can do. He cannot manage any gardening or lawnmowing simply because he cannot bend over. He tries to do a little bit at home but finds that vacuuming is difficult and anything involving bending aggravates his back. . He can't drive a normal car because of the sitting posture in the car and he uses a van which allows a more upright position for his back." [10] The appellant's general practitioner Dr Wong wrote in September 2001: "Unfortunately when Mr Saul works for any length of time he gets increasing pain and spasm in the back. I believe that at the present time he is working something like two hours a day. I think that these hours could be at least doubled so he is working, something like four or five hours a day but feel that it would be more appropriate that he did several hours in the morning, had a break, several hours in the afternoon so that in a course of a week would be up to 20 - 25 hours. However I feel that working a full day, 35 hours per week, would be out of the question. However, I think it would be more wise if he increased his hours very gradually and reassessment of situations made." [11] Dr Wong recommended that an increase in work hours would have to be done on a very gradual basis because rushing it would only aggravate the appellant's initial problem. Professor Gorman's opinion [12] In 2001 that the Corporation initiated preparation for vocational rehabilitation leading to vocational independence. Professor Des Gorman, occupational physician, examined Mr Saul and reviewed his history in a report of 3 October 2001. He regarded the bath incident as an aggravant of an already well-established problem. The incident was responsible for sudden onset of leg pain and that was the reason for a lumbar discectomy at the 14/5 level in February 1985. The surgery reduced his leg and ankle pain, but is uncertain to what extent it reduced his back pain. There was a very similar response to the lumbar laminectomy at the L4/5 level in August 1989. [13] Mr Saul described the pain to Prof Gorman as lumbar back pain sometimes radiating into his right greater trochanter and the lateral border of his right thigh. The pain was intermittent, usually burning but occasionally sharp and stabbing. The degree of pain varied between zero and nine out of ten and Mr Saul estimated that between 10% and 20% of his day was pain free, best in the mornings. At the time he was working for two hours in the morning at Taita College. His pain was made worse or precipitated by prolonged sitting and standing and was reduced by analgesics and heated wheat bags. [14] Prof Gorman noted that Mr Saul had never attended a comprehensive multidisciplinary pain management clinic. He had learned some lifting techniques and some relaxation techniques, but had never been part of a structured or supervised exercise programme. Prof Gorman made recommendations for medication and life style modification including an exercise programme for weight loss for control of diabetes. He stated that exercise needed to be supervised to ensure that the appellant exercises on days when his pain is severe, but does not over-exercise on days when his pain is mild. He recommended referral to a comprehensive multidisciplinary pain management programme. Prof Gorman said that it was premature to give an opinion about work fitness but recommended that the appellant move into a structured eight hour day, where he has formal commitments across the day. [15] As to diagnosis, he wrote: "There is a nociceptive component to this pain, but it is unlikely to be significant. ... The major contributor to Garry's health problem is a non-nociceptive physiologic pain disorder. This has secondary problems of sleep disturbance, fatigue and depression. It is also possible that he has a co-inherited condition of Raynaud's phenomena. Garry has allodynia, impaired vibration and proprioception and a non-dermatomal sensory loss in the left foot There is also a psychiatric component to Garry's disability. He has depression secondary to his pain and sleep disturbance. I could find no evidence of malingering, but could neither exclude a factitious disorder nor a somatoform disorder, and particularly in the context of strong positive Waddell's signs. Garry has fear avoidance behaviour and significant anxiety and depression, which are probably best collectively termed abnormal illness behaviour." [16] That was followed by a report on 6 December 2001 from an exercise physiologist. The report added no new medical information, but it is notable that the writer advised Mr Saul to increase his exercise. He considered Mr Saul to be a suitable candidate for a graduated exercise rehabilitation programme to increase his cardiovascular endurance and decrease his weight. However he qualified this recommendation on the basis that there would be considerable cost to Catalyst because of the longstanding nature of the problem. [17] On 16 January 2002 Catalyst obtained a pain management assessment report from Helen Chambers, consultant clinical psychologist. Ms Chambers reported that Mr Saul was in a highly anxious state and that his history indicated a generalised anxiety in which many things trigger him off to become highly anxious. Ms Chambers wrote: "This anxiety also contributes to making his pain feel worse and for him being anxious about how things will progress for him and perhaps feeds into his avoidance pattern as well." [18] She considered that he had a very poor sleep pattern which would exacerbate his pain as he gets non-restorative sleep. She considered that, because of his personality style, he has quite high avoidant patterns towards things that he becomes anxious about and thinks will increase his pain and he also has a pattern of being pain focused. This would also be associated with being anxious. In summary, the report stated: "Garry Saul is a highly anxious man who to my understanding has been off work for approximately ten years and has a well-established pattern of pain avoidance and pain focus thoughts and behaviours. In discussion with Garry he is willing to come and see me and work on some of these issues because he is aware that his current lifestyle is not very worthwhile or satisfying for himself and he would like to improve his quality of life. Overall this would include, perhaps a little way down the track, starting to get involved with work experience and then starting to take up on a step by step basis some work as well." [19] Ms Chambers recommended eight to ten pain management sessions looking at in particular cognitive behavioural issues, pain management and issues of lifestyle change because Mr Saul had been off work for a long time. On 26 March 2002, Ms Chambers reported that he had completed six pain management sessions and there were no psychological or psychiatric barriers to vocational return. Meanwhile an initial occupational assessment was completed by Macann and Associates dated 22 March 2002. The IOA is not directly relevant here because the issues in this appeal concerned the eventual medical assessment. The appellant possessed the occupational qualifications for a number of job types. Dr Turner's report [20] Dr WED Turner, occupational physician, then completed an initial medical assessment on 1 May 2002. The work types that he addressed were: Messenger/Door Keeper, Courier/Deliverer, Personal Care Worker, Hospital Orderly and Private Investigator. Dr Turner referred to Mr Saul's post-injury work history as a maintenance man and a cleaner at St Oram's College, Home of Compassion and Taita College. At the time of examination Mr Saul was attending a rehabilitation programme and was not working but was keen to work. He was not receiving any treatment. In giving his opinion of Mr Saul's injury condition and his ability to work, Dr Turner wrote: "Clearly this man has suffered two significant lumbar prolapses in the past, which have been successfully treated. He has no major residual ongoing physical injuries that would preclude full-time employment. The examination revealed minor evidence of pain behaviour and there were two Waddell's non-organic signs present. I would assess him as having had an adequate treatment and rehabilitation programme in respect of his injury status. Clearly however he was significantly overweight for his height and has marked central abdominal obesity which are non-injury phenomena, arising as a consequence of his diabetes mellitus In conclusion with reference to job options previously listed, I would categorise his current medically sustainable capacity as follows: Those jobs, which he would be capable of undertaking for 35 or more hours per week, are: 1. Telephone Switchboard Operator - providing he is able to get up and walk around from time to time. 2. Private Investigator 3. Security Officer 4. Messenger and Door Keeper. 5. Courier and Deliverer - this is his preferred occupation. He stated he could use a trolley for the heavier lifting. Dr Turner found that Mr Saul would be unlikely to manage work as a hospital orderly. He made no recommendations for further treatment. [21] Macann and Associates put together a work preparation programme for Mr Saul to identify job options and to coach him into a work trial or employment. The final report on Mr Saul's participation credited him with active and co-operative engagement in the programme. However the report expressed clear reservations about commitment to finding employment. The writer noted that Mr Saul was focused on his loss of physical ability and wary of any situation that might aggravate his injury. He stated: "Gary had the false impression when he came to the programme that a job would be presented to him without any job-seeking effort on his part, and he was most disappointed when this proved not to be the case. He was initially resistant to any coaching in this area as he thought that his job seeking was to be someone else's responsibility. Gary showed little or no interest in searching for a job for himself, even when a logical and effective method of job seeking was explained to him, and he was lead through the process. His lack of enthusiasm seems to be based on the belief that his entitlement to ACC compensation will continue as long as he can feel the effects of his injury and he is supported by his doctor in this. My attempts to motivate him to consider searching for work as an alternative to battling ACC for his entitlements have not been well received." [22] . Also in December 2002, Christoph Huelsmann, clinical psychologist, provided a report following some pain management sessions. Mr Huelsmann commented that Mr Saul found it difficult to focus and motivate himself and would need external direction to avoid falling back on his old habits and lifestyle which were comfortable for him. [23] Mr Saul and all but one of the ten people on the work preparation programme signed a complaint outlining "shortcomings, inappropriateness and humiliation". The ACC Chief Complaints Investigator commented on aspects of the complaint; that the programme was not needs-focused, that the attitude of the staff was inappropriate, and that an injury analogy used in the programme was disrespectful. The Investigator accepted the validity of the complaint and reported that Catalyst had put in place initiatives to ensure appropriateness and respectfulness in future programmes. The complaint needs to be taken into account in considering the weight of negative comments in the final report. [24] Mr Fong examined the appellant again on 2 February 2006. He noted that Mr Saul's walking pattern was normal and there was no external deformity apart from a surgical scar. Movement of the lumbar spine produced moderate muscle spasm and there was localised tenderness at the L4/5 level posteriorly. Mr Fong reported the results of his clinical examination and Mr Saul's own account of his level of activity without disabling pain. He considered that Mr Saul's pain behaviour was like any person with ongoing pain and anxiety about reaggravation. Mr Fong stated: "My opinion is that Gary Saul has had two major episodes of lumbar disc prolapse, each time with severe sciatica and radiculopathy. Although the sciatic symptoms were improved with discectomy the radiculopathy has only partially resolved and his back pain remains. As such Gary would have physical limitation from this. Gary's problem now has been existent for some time and I feel that his back pain has now come to a plateau phase. It is unlikely to show any significant change in the near future. As such I think the prognosis of his back problem is guarded. However I agree with the suggestion that physical rehabilitation and part time work would be good for the well being of Gary. I am not hopeful that Gary is capable of doing light physical work for any more than 15-20 hours per week." [25] . Dr Ahamat, who was then the appellant's GP, read the report and continued to issue ACC18 certificates for light physical work 20 hours per week. [26] Mr Saul was enlisted in a conservative activity-based programme followed by a work trial for 16 hours per week with a business called ALSCO refurbishing roller towel dispenser boxes. The work was tailored to his pain levels, but after several weeks he found that he could not sustain 16 hours a week and he abandoned the trial. He applied unsuccessfully for a part time position with ALSCO and it is not clear whether or not his abandoning the trial was in some way connected with not being able to get a permanent part time position. The work completion report was complimentary and stated that he was unable to sustain a four hour working day. The report noted that was backed up by information from his doctor. [27] The argument on this appeal does not concern the finalisation of the appellant's individual rehabilitation plan. The next series of documents that were produced begin with the vocational independence occupational assessment signed on 12 October 2007. There is no challenge to that assessment. Vocational independence medical assessment [28] The central question is the acceptability of Dr Waite's vocational independence medical assessment signed on 20 November 2007. Dr Waite was provided with many reports including fourteen letters from Dr Fong that were listed at the start of his report. It must be assumed that he well understood Dr Fong's opinion of the appellant's incapacity. The scope of the assessment did not permit a full analysis of the reports. Dr Waite referred to the bare facts of diagnosis, . .... treatment and outcome before quoting an extract from Prof Gorman's report written in October 2001. Prof Gorman believed that the appellant had a "non-nociceptive physiologic pain disorder" with secondary problems of sleep disturbance, fatigue and depression. Prof Gorman considered that there was a psychiatric component to the appellant's disability and could not exclude a factitious disorder nor a somatoform disorder. He referred to fear avoidance behaviour. Those comments were very consistent with later reports by occupational, psychological and physiotherapy advice obtained by the Corporation and available to Dr Waite. [29] After referring to the appellant's work history and family circumstances, Dr Waite set out his physical examination findings and concluded that "the physical findings, along with demonstrated deconditioning, show marked restriction of lumbar spinal movement and features of a neuropathic type pain disorder". He discussed the complication of diabetes and offered advice concerning medication and exercise. [30] It is at this point in the report that Dr Waite gave his assessment of the appellant's ability to undertake each of the job types recommended in the occupational assessment. In relation to the first job type, which was the fabricating work for which the appellant was then engaged in part time employment, Dr Waite stated: "I do not believe his current low back problems would prevent him from undertaking these activities. Garry says he enjoys this work but does not feel he could work a full week." He considered that the appellant's low back problems would prevent him from working as a metal goods assembler and some other job activities because of frequent lifting, carrying and bending. He approved the occupations of building caretaker, cleaner, small engine mechanic, sales assistant and gatekeeper. Dr Rajapaks [31] The appellant obtained another report of 12 May 2008 from Dr C N A Rajapakshaumatologist at Lower Hutt. Dr Rajapakshas a consultant rheumatologist who also holds a contract with the respondent for vocational independence medical assessments. He noted Dr Fong's report in 2001 that working for any length of time increased Mr Saul's back pain, causing spasm of his back muscles so that he was unable to work beyond 20-24 hours per week. He referred to Dr Fong's 2006 report that "in discussion with Garry about his physical limitations and his major back pain problem" Dr Fong agreed with the suggestion of physical rehabilitation and part time work, but was not hopeful of Mr Saul being able to do light physical work for more than 15 to 20 hours per week. Dr Rajapakshated Mr Saul's own account of his limitations and noted his examination findings. He then answered some questions as follows: 1. Physical limitations from clinical examination: Ongoing pain in the back, radiating down the thighs, fluctuating in intensity between 2/10 to 9/10, based on activity. Sitting limitation 15 minutes, standing limitation 30 minutes, driving one hour, sleep intermittently disturbed. Poor response to interventions. Marked impairment lumbar spine flexion and straight leg raising 2. Taking into account the physical requirements of each occupation identified in ACC's decision letter of 29 November 2007, do you think Mr Saul is capable of working in these positions for 35 hours per week? I don't think so. The reasoning is that he has not done more than 15-20 hours of work per week since 1991. He has pain that has not responded to multidisciplinary interventions. He has marked limitation of function as itemised in Item 1., above. With these limitations, he is almost certainly unable to perform the functions described in the VIMA of 29 November 2007. This would be in keeping with Mr Fong's conclusions too. 3. In my opinion, a significant feature of Mr Saul's work history since 1989, along with the medical certificates and opinions of Mr Fong, is that Mr Saul has been unable to work more than 15-20 hours per week in various capacities since the surgery of 1989. This would be a very important determining factor in Mr Saul's current work capacity. This would also be in keeping with Mr Fong's opinion. [32] Dr Rajapakshant on to report Mr Saul's positive response to Ms Chambers' sessions, and his criticism of the work preparation programme. Mr Saul said that the programme in 2006 was more in keeping with his limitations but that it did not improve his work capacity. [33] When invited to respond to Dr Rajapaksha report, Dr Waite noted the comments in regard to ongoing pain, but stated that in his opinion pain would not prevent Mr Saul from undertaking light to sedentary activities. He disagreed with Dr Rajapaksha rationale that the fact that Mr Saul had not worked for more than 15 to 20 hours a week since 1991 indicated inability to work full time. Dr Waite commented that Dr Rajapakshad given no clear reason why Mr Saul could not extend his hours to 35 hours per week in an appropriate ergonomic environment. Review [34] The appellant was unsuccessful in a review of the Corporation's decision. The Reviewer noted that ACC referred 51 documents to Dr Waite covering the appellant's medical and occupational background, and that Dr Waite interviewed and examined him for 65 minutes. Dr Waite made a distinction between work that the appellant could or could not do, clearly applying his mind to the requirements of each job type. He considered that Dr Waite described the appellant's pain in terms that are consistent with the reports on file and the evidence given by Mr Saul at the review hearing. He noted that the appellant's personal views of his work capacity could not replace Dr Waite's opinion, nor could a reviewer substitute his own judgment. [35] The Reviewer noted that Dr Rajapaksha consultant rheumatologist and has an ACC contract to perform vocational independence medical assessments. However the Reviewer noted that Dr Rajapakshaid not have the same volume of documentation that was supplied to Dr Waite and that his opposing view did not expose a flaw in Dr Waite's report. Dr Waite's opinion was consistent with Dr Turner's opinion. The Reviewer could not find that there was any convincing reason to regard Dr Waite's report as flawed. Appellant's submissions [36] Mr Thompson for the appellant made the following submissions: a) there is clear and cogent evidence showing that the reality of the appellant's physical capacity is that he is unable to work for 35 hours per week. This reality is exhibited by the weight of medical evidence on file, which is very much consistent with the appellant's experiences in the workplace over many years. (b) From the mid 1990's, the appellant's medical certificates, from Dr Wong and Dir Ahamat, have consistently confirmed that he is only fit to work for 10 to 20 hours per week. The certificates were issued at regular intervals, and were prepared by the GP after examining the appellant. The opinions of Dr Wong and Mr Fong were repeated in letters confirming that they believed the appellant was not capable of full time work. (c) Those views are now supported by an assessment made by Dr Rajapaks (d) The appellant has been motivated to work but has never been able to work for more than 20 hours per week. That was confirmed by the work trial, in which he performed well but was unable to work for more than 16 hours per week. (e) Dr Waite's report is flawed, as it does not comply with the mandatory requirements set out in clause 29 of Schedule 1 of the IPRC Act 2001. Specifically, Dr Waite has failed to report on the results of additional assessments of the appellant's condition. Dr Waite has not given adequate reasons for his opinion that the appellant has now obtained vocational independence, in light of the weight and cogency of evidence showing that the appellant is unable to manage full time work. (f) Dr Waite did not discuss the significance of the fact that, since 1993, the appellant has never been able to work in any job for more than 15 to 16 hours per week (from the 90s, the appellant's ACC medical certificates have consistently confirmed that he is only fit to work light duties, for 10 to 20 hours per week). Neither does Dr Waite comment on Mr Fong's advice that full time work is beyond the appellant's physical capabilities. Respondent's submissions [37] Mr Hack for the respondent made the following submissions: a) that it cannot be inferred that Dr Waite did not consider Mr Fong's reports. They were listed in Dr Waite's assessment as documents that he referred to. It would have been better if Dr Waite had dealt specifically with Mr Fong's opinion of the appellant's limited ability to work any longer than 20 or perhaps 25 hours per week at the most, but the omission of specific comment is not a flaw in the assessment. b) the assessment is based on the assessor's judgment based on knowledge and experience, and does not need to be justified by full reasons. He does not to have to deal with or refute every report on the appellant's file. (c) the appellant's own assessment of his capacity for work is not a determining factor, because there are clear indications of avoidant behaviour. Avoidant behaviour may occur through injury beliefs and is not the same as malingering. d) the appellant has usually worked part time and his claim to be disabled by pain or fatigue after 16 or 20 hours is self-reported, with medical support based on his self-reporting. (e) in the reports available to Dr Waite, Mr Fong's opinion of unfitness for full time work is to be read alongside other reports that have referred to avoidance behaviour and lack of motivation to work beyond a point at which the appellant considers to be his limitation. While the reports mention that the appellant is genuinely motivated to work, they do not suggest that he is motivated to push himself in order to achieve full time activity; (f) Dr Turner considered that there were no major residual ongoing physical injuries that would preclude full time employment. Ms Chambers observed symptoms of anxiety and avoidant behaviour that indicated the appellant has a better capacity for work than he is prepared to address. Professor Gorman could not exclude a factitious disorder, nor a somatoform disorder, (g) therefore even if there has been an omission to state reasons, it is not substantial and requires no judicial intervention. The discrimination between suitable and unsuitable work types is presented with reasons that make it clear that the assessor accepted a substantial restriction in the appellant's ability to work. (h) Dr Waite and Dr Turner are both occupational medical specialists and practise in a field dealing with vocational independence or capacity for work. (i) Dr Rajapaksha report was substantially based on the appellant's own account of his pain experience. Decision [38] The appellant's case turns on a general argument about the need to give reasons, and a more specific argument that clause 29(1)(c) requires certain matters to be specified. Clause 29 is as follows: 29 Report on medical assessment (1) The medical assessor must prepare and provide to the Corporation a report on the medical assessment specifying- (a) relevant details about the claimant, including details of the claimant's injury; and (b) relevant details about the clinical examination of the claimant undertaken by the assessor, including the methods used and the assessor's findings from the examination; and (c) the results of any additional assessments of the claimant's condition; and (d) the assessor's opinion of the claimant's vocational independence in relation to each of the types of work identified in the occupational assessor's report; and (e) any comments made by the claimant to the assessor relating to the claimant's injury and vocational independence in relation to each of the types of work identified in the occupational assessor's report. 2) The report must also identify any conditions that - (a) prevent the claimant from having vocational independence; and b) are not related to the claimant's injury. (3) The Corporation must provide a copy of the report to the claimant. [39] Subclause (c) appears to refer to additional assessments that are obtained for the purpose of the vocational independence assessment. I think that it can apply also to the opinion that the assessor may reach on a point that is fundamental to the vocational independence assessment itself. Not everything that the assessor decides would amount to an additional assessment, but if the assessor makes a medical decision about a crucial matter that has been the subject of conflicting medical opinion, that decision is equally as important as an additional assessment obtained from a specialist for the purpose of the vocational independence medical assessment. [40] The medical reports, and the occupational and vocational reports, reflected a conflict between the view that the appellant suffers disabling pain after working for more then about four hours a day and the view that he has come to accept wrongly that the pain he experiences is damaging to him and will get worse when he attempts to continue working. In reviewing the available information and deciding that the appellant was not restricted by the effect of pain, I think that Dr Waite made an assessment preliminary to the ultimate assessment under s 29(1)(d) concerning specific work types. [41] Mr Thompson for the appellant recognises that the Corporation's decision based on the opinion of a duly appointed assessor cannot be disturbed by presenting contrary opinions, unless there is shown to be a real flaw in the assessment. In this case the flaw is said to be an omission to give express consideration to a crucial body of evidence bearing on the severity of the appellant's medical condition, and the resulting pain that is a real impediment to his sustaining more than about four hours work a day. [42] An assessment of the effect of pain and fatigue is usually a matter of medical judgment and usually cannot be reinforced by precise reasoning. However where the assessor's opinion departs from some significant prior diagnostic finding then the integrity of the assessment may require the statement of the assessor's different opinion, or at least an indication that the assessor has considered the other opinion and reached a different view. If the assessor had referred to Mr Fong's opinion of limitation through pain and fatigue, and if the assessor had given brief reasons for differing from that opinion, then it is difficult to see any basis on which the assessment could have been challenged. The argument against the assessment is based essentially on omission to give reasons relating to that aspect of medical judgment. [43] Mr Thompson referred to a number of judgments in this jurisdiction in which there has been emphasis on the importance of a vocational independence assessment and the consequent need for the reasoning in the assessment to be transparent or capable of analysis. [44] In this case, the assessor's view conflicts with a long history of medical acceptance of the appellant's experience of pain and fatigue. Both general practitioners and an orthopaedic surgeon have consistently accepted, since the appellant's condition stabilised in about 1991, that pain with muscular spasm and fatigue have prevented him from working for more than 20 hours per week, or perhaps 25 at the most. The appellant's case is to some extent supported by Dr Rajapakshaion that has been offered as another assessment, but that largely incorporates the opinions of Dr Wong and Mr Fong, and does not contain other objective information apart from the clinical examination, which has been consistent and unremarkable in all the reports. [45] In my view, Dr Waite's report does not go quite far enough in setting out his reason for reaching a different conclusion. I think that it is a marginal case, because the mass of reports also disclose aspects of pain behaviour and unwillingness to address increased activity. The physical limitations caused by injury do not prevent the appellant working full time. Also the medical views depend on the weight which a practitioner is prepared to give to the appellant's own reporting of his pain and fatigue. The experience of pain and fatigue cannot be independently measured. [46] . No doubt Dr Waite took those factors into account. Mr Thompson's argument is that the assessment result was such a marked departure from a consistent body of medical opinion that the assessment needed to specify reasons for the departure. I agree that the assessment does not inform a reader of the assessor's reason for rejecting a consistent thread of acceptance by doctors of the appellant's limitations, and it is not a case in which the Court can supplement the assessment with reasons extracted from the documentary history. [47] The assessment referred to extracts from various document's including statements by Dr Fong, but Dr Waite did not state his own view on the pain and fatigue question before rating the appellant's ability to do specified jobs. I would not accept that an assessor must always provide reasons justifying his opinion, but in this case the assessment omitted to state the assessor's opinion on a central question. That is the omission that in my view must be regarded as a flaw in the assessment. [48] In reaching that conclusion, I accept that the assessor's departure from a medical view established by consistent certificates and opinions over a number of years amounts in itself to an assessment that must be specified under clause 29(1)(c) of Schedule 1. However if that is not a correct interpretation of the subclause, then I find that the implicit finding of ability to work despite perception of pain was central to the assessment and needed to be expressly stated. [49] For those reasons the appeal is allowed. The Reviewer's decision is quashed and the vocational independence assessment is set aside. The Corporation may conduct a new assessment. [50] The appellant will have costs of $3,000 having regard to the extent of the argument and documentation. The appellant is also entitled to reasonable disbursements. Judge D A Ongley District Court Judge