Bidlake v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON DECISION No. 90/2006 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 274/05) BETWEEN GRAEME ALLAN BIDLAKE Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 28 February 2006 Appearances: Mr I S Young-Gough for appellant Ms D S Lester for respondent Judgment: 11 April 2006 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] This appeal concerns a vocational independence assessment. There are a number of challenges to the process of rehabilitation and to the occupational and medical components of the assessment. A central concern of the appellant is that he was not given enough assistance to return to his pre-injury employment, or to prepare effectively to engage other work. [2] Mr Bidlake was engaged as a plumber, both as an employee and also on his own account, for 39 years. He suffered a personal injury by accident on 27 February 2000 when he fell down a bank and sustained diagnosed injuries described as “Comminuted fracture left os calcis with involvement of the calcaneocuboid and posterior subtalar joint”. He had cover and weekly compensation under the Accident Insurance Act 1998. [3] Mr Ian Denholm, orthopaedic surgeon, performed an open reduction and internal fixation of the os calcis fracture on 6 March 2000. In December 2000, Mr Denholm noted continuing pain although x-rays demonstrated the os calcis fracture had united well. He discussed with Mr Bidlake the option of subtalar fusion and noted that Mr Bidlake wanted to think about it. [4] In June 2001, Dr Peter Dodwell wrote that further surgery was not indicated at that stage, but he would be kept under review. He said surgery such as mid-tarsal fusion would not improve his mobility, in fact quite the reverse, but it might be warranted at some later stage if pain became a major problem. He said there was no other form of therapeutic intervention that would affect long-term outcomes. [5] In September 2001, Mr Denholm wrote that Mr Bidlake’s symptoms were primarily arising from his subtalar joint. He explained to Mr Bidlake that the only option for surgical management would be fusion of the joint but it was likely that he would never return to work as a plumber if this were done. Mr Denholm noted that Mr Bidlake was looking at the option of retraining for a lighter job. [6] The first individual rehabilitation plan (IRP) was signed in October 2001. The main focus of the IRP was on return to work as a plumber. That is what Mr Bidlake wanted to do, despite medical advice. His GP, Dr Rita Middleton wrote that she had some misgivings, because there was little mention of the fractured heel and the plan was aimed at general fitness. She said that while that may well be helpful, the concerns expressed both by the orthopedic surgeon and herself related to his safety with climbing ladders and working on roofs. She was concerned that there needed to be a recognition, clearly stated to Mr Bidlake, that the rehabilitation may not equip him to work at his job as a plumber, and that he may well need to consider training for alternative employment. [7] An initial occupational assessment was done in May 2002 after the 2001 Act came into force. The assessment and subsequent renewed IRP were directed at alternative employment. Mr Bidlake was suffering chronic pain and attempts were made to address this, but they may not have been very well organised. [8] Mr Andrew Simmonds, orthopaedic and treating specialist, wrote on 20 January 2004 that in his opinion Mr Bidlake should have a subtalar arthrodesis. That recommendation had been suggested by Mr Ian Denholm, orthopaedic surgeon but had not been taken further. Mr Simmonds expressed the reservation that, after a long period of painful tolerance of the condition, Mr Bidlake would have difficulty returning to satisfactory function. [9] The vocational rehabilitation plan was completed and Mr Bidlake submitted to a vocational independence assessment in September 2004. He was assessed as being able to work for 35 hours or more a week in a number of work types. He applied for a review of the assessment. [10] The transcript of the review hearing was lost. Mr Bidlake filed an affidavit in support of the appeal, in order to encapsulate the evidence that he had given at the review hearing. He said that he believed he could return to work as a plumber if he had successful surgery. He believed he would be able to do the plumbing work, so long as he avoided roofing work. He wanted the opportunity of having fusion surgery and starting to work again part time as a plumber, with a view to eventually getting off weekly compensation. [11] Mr Bidlake believed that ACC did not want to assist with further rehabilitation, but just wanted to get him out of the weekly compensation system. [12] The appeal has been argued on the basis that the vocational rehabilitation was unsatisfactory and should therefore not be regarded as having been completed. Particular shortcomings are said to have been failure to address remedial surgery and also literacy. Mr Young-Gough also argues that the vocational independence assessment was flawed both in identifying work to which Mr Bidlake was suited, and in assessing his physical capability. It is also submitted that the Corporation failed to give the appellant time to consider the assessments and make his views known to the assessors or to the Corporation. Surgery [13] Ms Lester noted in her submissions that the Corporation has only recently become aware of Mr Simmonds’ letter supporting further surgery. The appellant had not taken any steps to seek the further surgery. No application was made to the Corporation for assistance. [14] In his affidavit, Mr Bidlake said that Jo Beetham, physiotherapist, was the person that organised the appointment with Mr Simmonds through the ACC, so they must have known about it. He said that the ACC lawyer at the review hearing represented that the case manager, had not yet made a decision. Mr Simmonds wrote the letter of 20 January 2004 to Dr Middleton. On 26 February 2004 Dr Middleton issued a medical certificate noting that Mr Simmonds offered an arthrodesis but could not guarantee that it would relieve pain or increase function. On 25 September 2004 Dr Middleton wrote in a vocational independence questionnaire “Has been seen by Mr Andrew Simmonds in Jan/04. He concurs with Mr Denholm that an arthrodesis of the subtalar joint is the only possible surgical management. This may not alleviate the pain which has been ongoing for 4 years. It would decrease his range of motion of his ankle, & for this reason Mr Bidlake has been reluctant to have surgery.” [15] Mr Young-Gough submitted that, even if the Corporation was not at fault for failing to address the surgical option at the time of beginning the vocational independence process, then a new look at the situation should still be taken in light of the information available to the Court. Mr Young-Gough referred to appeal decisions in Flintoff (58/04) and McCulloch (109/05) where rehabilitation had been found defective and the vocational independence was premature. Decision [16] I find that the appellant was probably reluctant to have the surgery done. At least it is clear that no request was ever made. The evidence does not suggest that the Corporation became obliged to consult with the appellant about surgery as part of the rehabilitation process. I have referred to information on the Corporation’s file, including Dr Dodwell’s view that that surgery such as mid-tarsal fusion would not improve mobility, in fact the reverse, but might be warranted at some later stage if pain became a major problem. An arthrodesis had disadvantages, and its benefits were never recommended as a means of returning to work. In the circumstances, it could not be said that ACC were obliged to address the prospect of surgery when it had not been initiated by the appellant. [17] I do not find the evidence compelling enough to reopen the question of completing rehabilitation, because it is not a case where the appellant was seeking a surgical solution to improve his capacity to work, and even now the medical evidence does not stipulate surgery as a need for rehabilitation before the appellant can return to work full time. The individual rehabilitation plans [18] Mr Young-Gough submitted that the outcomes or objectives of rehabilitation did not conform with the purposes of the 2001 Act. There were three IRPs. The IRPs initially stated the outcome to be achieved as to “Maintain employment with same employer” which reflected the first of the hierarchical considerations in Clause 54 of Schedule 1 of the 1998 Act: 54 Purpose of vocational rehabilitation The purpose of vocational rehabilitation is to help an insured to, as appropriate, - (a) Maintain employment; or (b) Obtain employment; or (c) Regain or acquire a capacity for work. [19] Mr Bidlake’s next IRP, after the 2001 Act had come into force on 1 April 2002, stated the outcome to be achieved as “Regain an ability to work”. There is no purpose in exactly those words in the new equivalent section 80(1) of the 2001 Act. The provision was re-enacted with only one change. That was to recast subara (c) to use the new expression “vocational independence” which had been substituted for the former expression of “capacity for work”. The point of Mr Young-Gough’s submission was that in reality the IRP had shifted the target to vocational independence, but that Mr Bidlake was not to know he was on the path to an assessment designed to take him out of the weekly compensation system. The new IRP was signed on 26 April 2002. [20] The 2001 Act also introduced new provisions for initial occupational assessment (IOA). Mr Bidlake had an IOA in May 2002. The new initial assessment was to guide the vocational rehabilitation plan. While Mr Bidlake had been focusing on maintaining part time plumbing work with eventual longer hours, the Corporation was moving to assess him for vocational independence. The April 2002 IRP was at least clear in stating that: “Catalyst will refer Mr Bidlake for an Initial Occupational assessment and CV for identification of viable alternatives for future employment. Mr Bidlake will attend an Initial Occupational assessment with the vocational service provider. Intervention Monitoring Case Manager will consider recommendations made by vocational service providers. Catalyst will refer Mr Bidlake for an Initial Medical assessment and CV for identification of viable alternatives for future employment. Mr Bidlake will attend an Initial Medical assessment with the medical service provider.” [21] Mr Bidlake, in his affidavit said that Dr Dodwell told him he could continue as a plumber with limitations. I have read Dr Dodwell’s report of 13 June 2001 and note that Dr Dodwell was not at all encouraging about Mr Bidlake continuing with his plumbing occupation. The change of emphasis in the IRP was however significant. In his affidavit Mr Bidlake put it this way: “26. I did not hear from the ACC for about a year. I was then called into the Masterton office and told that unless I took part in how to go about getting a job I would have my weekly compensation stopped. I was surprised at this as I believed I should get treatment and help to get me going again as a plumber. 27. I was also told to sign a Rehabilitation Plan or I would lose my weekly compensation. I did not know until later that they had changed the outcome from keeping employment as a plumber to returning to work in another kind of job. I found out from my lawyer much later that I could have gone to a Review about this but the ACC never told me anything about a Review. Just sign it or we will cut you off. I had the wool pulled over my eyes like that a lot of other times.” [22] The next IRP was dated 20 August 2003. It referred to the work types identified in the initial occupational assessment. It was clear that those were being considered for possible full time assessment in July 2002 and the decision employment. Two years passed between the initial occupational in July 2004 until the vocational independence assessment. It does seem that there may not have been much active communication and Mr Bidlake may have assumed for a while that he could continue with his reasonable ambition to get well enough physically to continue with plumbing work rather than with a full time job that was less suited to his training and ability. However the IRPs did not reflect that purpose. [23] Ms Lester submitted that abandoning the objective of returning to plumbing work was not new. Dr Rita Middleton on 4 October 2001 said that the plan then proposed may not equip him to work as a plumber and that he may need to consider training for alternative employment. She believed that this needed to be clearly stated to Mr Bidlake. That letter followed an opinion of Dr Dodwell putting severe restrictions on his ability to return to plumbing work. [24] Ms Lester noted that Mr Bidlake himself had acknowledged to Bowling & Associates in November 2001, while preparing a pre-employment programme, that “he knew that he could not go back to the plumbing trade”. He was then undergoing pre-employment preparation and Work Ready programmes for employment in other areas. [25] Mr Young-Gough submitted that the change was of such significance that he should have had a right of review, relying on Weir v ACC (unrep, High Court, Wellington CIV2003-485-1921 18 August 2004, Miller J). He submitted that the vocational independence decision should be quashed. Decision [26] Mr Bidlake may have assumed that he could continue with his reasonable ambition to get well enough physically to continue with plumbing work rather than with a full time job that was less suited to his training and ability. However that would have been an assumption on his part that would not have obliged the Corporation to defer assessing vocational independence. [27] The new IRP of 26 April 2002 was endorsed with the standard acknowledgement that the claimant accepted personal responsibility for his rehabilitation, and that the case manager had provided information explaining the relevant sections of the Act and review rights, having discussed that with the claimant during the preparation of the plan. [28] Case managers have the responsibility of informing claimants of their obligations, and of the process that is predicted by the statute and the administrative arrangements. There have been cases in which the Court has set aside assessments because important aspects of rehabilitation have been neglected. Here the essential allegation is that with the level of communication from the case manager was unsatisfactory. It is said that the case manager did not explain that the objective in the plan was altered from return to pre-injury employment to a new objective of vocational independence. That alone is not enough for the Court to intervene. There would have to be some reasonably significant consequence which the Corporation failed to address during the following two years before vocational independence assessment actually occurred. [29] The appellant had probably become comfortable with the process of rehabilitation directed towards resuming his former employment. He was optimistic that his injury would settle and he wanted to continue working. Then he found himself moved to vocational independence assessment which was a far less attractive rehabilitation target. But that was the course prescribed by the statute, because he was not fully fit for plumbing work. [30] It was established in the judgment of Miller J in Weir that there is a right of review under s134 of the 2001 Act when a claimant agrees to an IRP or the Corporation advises that an IRP is finalised. By clause 9 of Schedule 1 the Corporation thereby makes a reviewable decision. [31] In this case, Mr Bidlake acknowledged in the standard printed form that the case manager had provided information explaining the relevant sections of the Act and review rights. What the case manager did explain is not recorded, but Mr Bidlake said in his affidavit that ACC did not tell him anything about a review. That is consistent with the Corporation’s view in 2001 that there was no right to review an agreement for an IRP. That view was advanced by the Corporation in argument in Weir. I find therefore that there was a failure to notify the appellant of his review rights at the time of the IRP of 26 April 2001 which initiated the purpose of vocational rehabilitation for regaining ability to work, which meant for vocational independence. That was a significant step or significant change. For one thing, Mr Young-Gough submitted that if the former purpose of maintaining employment had continued, there would have been no requirement to embark on an initial occupational assessment. That is true. [32] There have been a number of decisions dealing with defects in an IRP in the context of their likely effect on the subsequent process of vocational independence assessment, for example Judge Beattie’s judgments in Millan (379/04) and Print (403/04), my judgment in Purches (239/05) and recently Judge Barber’s judgments in Laidlaw (52/06) and Nadali (53/06). In Laidlaw, Judge Barber identified the general principle that, in considering the effect of non-compliance with statutory procedure, the context of the defect must be considered to determine its effect on the integrity of the procedure as a whole: A J Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 (CA); Re Geotherm Energy Limited [1989] 2 NZLR 22 (CA). [33] Applying the principle to the present case, I find that the error in failing to notify Mr Bidlake of his right to review did not have a significant consequence. For the next two years Mr Bidlake must have been aware of the purpose of vocational independence. It was first introduced in the IOA in May 2002. But he did not make any suggestion for vocational rehabilitation through further surgery or in any other way to promote his return to full time work as a plumber. There is still no clear opinion that return to work would be advanced by surgical arthrodesis. I am forced to the conclusion that there was no viable ground for an appeal against the 2002 IRP and that failure to notify had no practical effect on the subsequent procedures. Literacy [34] The initial occupational assessment report was dated 14 May 2002. The assessor reported that “Graeme states that he has reading and writing limitations and has never been that way inclined”. [35] Literacy had not been addressed in the IRP. Mr Young-Gough submitted that literacy is a key factor reported in the Minister’s letter of 22 March 2004 to the ACC Chairman for the 2004/2005 year. Therefore, it was submitted that Mr Bidlake’s rehabilitation was seriously flawed. Ms Lester submitted that the Minister’s letter is a policy document with no legal effect. I agree that is so. The Court should be able to consider alleged defects in a plan in the context of the facts of a particular case. The policy advanced by the Minister does not assist the appellant’s case. [36] Ms Lester submitted that the brief reference to reading and writing limitations cannot reasonably support a significant defect in the assessment. It was only a report of Mr Bidlake’s own view of his skills and could not be the basis of a significant error by the assessor. Ms Lester noted that there had been no request for literacy assistance. Bearing in mind the claimant’s own statutory responsibility to advance his own rehabilitation to the extent that is practicable, he could have squarely raised the problem if he saw it as a barrier. Furthermore, the assessor noted that Mr Bidlake attended Wairarapa College for two years until age 15 and obtained above average marks in exams, possibly referring to examinations for his apprenticeship. He obtained his trade certificate and had operated successfully in business for a number of years. Decision [37] I find that the literacy question does not demonstrate a flaw in the IRP or in the occupational assessment. There is little evidence in this case of a literacy deficit that would render the appellant unsuited to the occupations in the 2002 initial occupational assessment or in the 2004 vocational independence assessment. There is no evidence that a literacy problem was raised by any of the consultants or providers to whom the appellant was referred. He did not raise it himself, except by way of expressing a doubt to the initial occupational assessor. [38] Neither is there enough evidence to show that a failure to address literacy undermined the vocational independence assessment. The guiding principle expressed in Ramsay v Accident Insurance Corporation (High Court Dunedin, AP 412/14/02, 12 December 2002, John Hansen J) is that an assessment conducted according to the processes in the statute must be accepted unless there is cogent evidence to demonstrate a flaw. In relation to literacy, there is no such evidence. The occupational assessment [39] Mr Young-Gough went on to submit that the jobs listed in the occupational assessment are largely menial and require little or no training. They were Metal Goods Assembler, Leather Goods Assembler, Packer, Occupational Therapy Aide, Case Worker (Support Worker Mental Health), Stock Clerk (Plumbing Outlet), Sales Assistant. [40] He submitted that plumbers are a skilled occupational group. If there is any need to support that by evidence, Mr Young-Gough produced a copy of the Long Term Skill Shortage List produced under provisions in the Immigration Act 1987. He submitted that such a person should not be put into menial work of much less remuneration. Mr Young-Gough submitted that the recommended jobs did not match the skills and experience of a claimant with 39 years experience as a plumber and roofer. It was submitted that the assessor should have identified jobs of equivalent status with appropriate qualifications, experience and remuneration. Instead there was a scatter gun approach to identify as many jobs as possible in the hope that some will percolate through the system to enable Mr Bidlake’s exit from the scheme. [41] Mr Young-Gough referred back to the initial medical assessment in which a selection of jobs (Metal Goods Assembler, Leather Goods Assembler, Packer, Occupational Therapy Aide, Case Worker, Stock Clerk and Sales Assistant) were considered sustainable but with various qualifications. The final occupational assessment by Anna Perry reported on 7 September 2004 confirmed Mr Bidlake’s 39 years as a plumber/roofer and that he is a Master Craftsman (Trade Certificate). The assessor then listed different jobs from the initial assessment. They were Personal Care Worker, Social Work Associate Professional, Stock Clerk, Salesperson and Demonstrator, Packer and Freight Handler, Metal Goods Assembler, Plastic and Rubber Goods Assembler and Ticket Seller. [42] Mr Young-Gough submitted that the occupational assessment was considered flawed because it took into account only two of three fundamental factors of experience, education, or training, that are required to make a match. [43] Ms Lester submitted that there is no legislative reference to jobs of equivalent status, or for personality match. Neither is there any case law to suggest this. In Parker (29/05) I considered that the vocational independence matching, by reason of experience, education, or training, or any combination of those things, tolerates a reduction in income and a loss employment status. Ms Lester submitted that the positions of recreation coordinator and community worker are not “low level” jobs and that the appellant has suitable experience from doing voluntary work. Decision [44] I accept Ms Lester’s submission that the range of job types is not shown to be unacceptable. The only particular reason that is advanced for lack of qualification is the lack of literacy skills, which I have found to be unsubstantiated. The assessor is required to exercise a judgement that the jobs match the appellant’s skills, bearing in mind the definition of vocational independence in s6 of the Act: vocational independence, in relation to a claimant, means the claimant's capacity, as determined under section 107, to engage in work - (a) for which he or she is suited by reason of experience, education, or training, or any combination of those things; and (b) for 35 hours or more a week [45] Clause 24 of Schedule 1 provides that an occupational assessment must be undertaken by an assessor whom the Corporation considers has the appropriate qualifications and experience to do the assessment required in the particular case. On the evidence in this case I cannot see that the assessor appointed by the Corporation has failed to apply the criteria in s6. [46] It may well be said that the selected job types are not ideally suited to the appellant, but that is not enough. I am not aware that it has been attempted, in any of the decided cases in this jurisdiction, to define a test for suitability where the selected job types are less attractive than the claimant’s former employment for reasons of income, quality or job satisfaction. This is not a case in which formulation of such a test can be attempted. I find that there is insufficient evidence to establish that the job types are manifestly unsuited to the extent where the Court could find the assessor’s opinion flawed. [47] The change in selected job types between the time of the initial occupational assessment and the final assessment is not unusual. It generally depends on the medical assessment, on intervening events and on the individual judgement of the assessor. I cannot see that there has been any unusual departure in this case. Notice of the occupational assessment [48] Mr Young-Gough then submitted that Mr Bidlake did not receive the occupational assessment until a few days before the medical assessment. He had four working days to challenge aspects of the report with which he disagreed and to comprehend it for the purpose of the medical assessment. It was submitted that the short time was unreasonable and a breach of the principles of natural justice. [49] Ms Lester noted that there is no time requirement in the Act. She said there were 6 days counting the weekend and that the options had been discussed between Mr Bidlake and the occupational assessor. Ms Lester submitted that there should be no hard and fast rule in terms of what is a reasonable time between assessments. Each case depends on its facts. Decision [50] I find that the six days between receiving the occupational assessment and attending the medical assessment was inconsequential. Of course it was an important matter for the appellant, but there is no evidence that the relatively short time actually prejudiced him in any way. The medical assessment [51] The next point concerned the medical assessment completed by Doctor Xianghu Xiong on 21 September 2004. He confirmed the seriousness of the injury and its consequences including chronic pain, and that Mr Bidlake was limited to sedentary or light work. Mr Young-Gough noted that Dr Xiong did not explain what information he received as basis for his medical assessment, but that seemed to be an incidental point. [52] Doctor Xiong did not mention a plumber/roofer occupation. It was mentioned that this occupation did not appear in either final assessment. There is of course a very good reason for this. Mr Bidlake had not regained fitness and the medical reports before the Court qualified him for only limited aspects of the work, and also limited hours. If he had been able to resume his former employment he could have been assessed with capacity under s103. The vocational independence assessment proceeded on the basis that he could not resume that former employment. There is no evidence to persuade the Court that his former occupation should not have been excluded. [53] Dr Xiong listed the jobs that Mr Bidlake could not do: Sales Assistant, Packer and Freight Handler, Metal Goods Assembler and Plant and Rubber Goods Assembler. He considered that Mr Bidlake had vocational independence in the jobs of Recreation Coordinator, Community Worker, Stock Clerk and Ticket Seller. [54] Mr Young-Gough submitted that each of those occupations had an “intermittent” characteristic that was contrary to the appellant’s identified physical limitations. It was submitted that Doctor Xiong was equivocal and that he did not know what intermittent meant. Effectively, that limitation had become meaningless. Mr Young-Gough referred to Belling (113/04) for authority that the Medical Assessor must be unequivocal in his assessment as to whether or not the claimant has the capacity to carry out the various tasks of any particular employment option. [55] Mr Young-Gough submitted that “intermittent”, with it Oxford Dictionary meaning of “occurring at intervals; not continuous or steady”, is a vague expression. He submitted that the expression “variable” has been held to be too vague to be useful in making a medical assessment, and that “intermittent” should be regarded with the same disfavour. Mr Young-Gough referred also to the “Work Type Detail Sheet” for Stock Clerk which states: “May need to stand for extended periods but with moderate flexibility of movement”. He submitted that is contrary to Doctor Xiong’s description of it as “A sedentary job . . does not require standing or walking”. Standing and walking was excluded in the summary at the end of the assessment report. [56] The particular passage at the end of the report was: “At this stage, I do not feel any further treatment is required. He obviously needs further orthopaedic follow up periodically and unfortunately as far as the left ankle and foot is concerned he is severely impaired and will have long term sequelae therefore limiting his work and job options particularly in the more physical category and the jobs that would require standing and walking as well as lifting.” [57] The Work Detail Sheet supplied for “41311 Stock Clerk” stated: Work Function/Activity: Sedentary role. Spend their day constantly sitting at a work station carrying out a variety of document checking and issuing, data entry and processing tasks. May carry out a variety of other clerical/reception type activities in addition to core tasks if working in smaller offices. … Occasional standing and walking about the office and to other office and operational business areas will occur in order to manually check documentation. [58] Mr Young-Gough noted that Dr Xiong stated that the job did not require standing or walking, while “occasional” standing or walking is described in the sheet. [59] Ms Lester submitted that this Court has previously considered the “intermittent” description contained in many job detail sheets. She submitted that the argument that Dr Xiong erred in his assessment is not sustainable on the basis of interpretation of various expressions used in the job detail sheets, and is not sustainable on medical grounds in the absence of other persuasive medical evidence. Decision [60] The appellant challenges the medical assessment for inconsistency and error. It is difficult to make a case for error on the face of the assessment. I find that there is nothing in the work sheets that prescribe walking or standing to an extent that is beyond the appellant’s physical capacity as described by Dr Xiong. The jobs of stock clerk and ticket seller involve some walking or standing. The appellant is not confined to a wheelchair and it is implicit in the medical material that walking or standing is within his capacity, but that he is not capable of work that does not provide relief from walking or standing. If Dr Xiong was unsure, he should of course have asked for clarification of the degree of the activity in question. Medical assessors are accustomed to using job descriptions in which similar descriptions of physical activity occur repeatedly. It can safely be assumed that medical assessors are broadly conversant with the nature and degree of activity described in the detail sheets, and nothing is to be gained by pedantic discussion of possible errors. The Court is obliged to give due weight to professional judgment. [61] The stock clerk job appears to be sedentary with little walking and standing. The job of ticket seller involves constant sitting or standing at an office desk or counter. In my view, the common sense understanding of that is that the worker has a choice of either sitting or standing. I do not find Dr Xiong’s assessment defective either on the ground of internal contradiction in the terms of his report, or on the ground of failure to understand and apply the relevant parts of the job descriptions. Timing of the decision [62] Finally, Mr Young-Gough submitted that the Corporation decision was issued six working days after the vocational independence assessment report was delivered to Mr Bidlake. The short notice is said to be unreasonable and a breach of the principles of natural justice. [63] Ms Lester submitted that there is no legislative requirement for a period of time to elapse before the issuing of a decision. The claimant always has a right to access the dispute resolution processes, so there can be no breach of natural justice. [64] That is correct. There is no statutory provision requiring an opportunity for discussion at that stage. Consultation opportunities are provided at various stages of the process. They may have been unsatisfactory as the appellant contends. His own views may have been rejected in favour of the views of various assessors and other persons involved in the rehabilitation process. But once the Corporation obtained the information that it required in order to make a vocational independence decision, there was no statutory requirement to consult with the claimant. Whether or not it should have done so was a matter for administrative and policy considerations, but it could not affect the validity of the decision. [65] I find that none of the grounds of appeal can succeed. The appellant might have been able to obtain a better quality of vocational rehabilitation if the objectives had been better defined and if there had been better communication. For example, there could have been more timely and thorough discussion of the reasons preventing the appellant from returning to his pre-injury employment. There could then have been a more comprehensive approach to alternative employment options, and consideration of a programme to address literacy or other job-related needs. [66] The outcome of rehabilitation was unsatisfactory, not least because the appellant was left with an abiding sense of disappointment. But it has to be borne in mind that the claimant also has obligations to promote rehabilitation, and needs to raise questions to assist in the structure of an individual rehabilitation plan. When the process that occurred in this case is examined, I have found that the Corporation is not shown to have failed in its statutory obligations. [67] The appeal is therefore dismissed. Signed at Wellington on 11 April 2006 at Judge D A Ongley District Court Judge