Crook v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2015] NZACC 123 ACR 607/12 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN GRANT CROOK Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 14 October 2014 Appearances: A M Brown for the appellant P A McBride for the respondent Further submissions completed: 20 October 2014 Judgment: 29 May 2015 RESERVED JUDGMENT OF JUDGE L G POWELL [1] The appellant, Grant Crook, a commercial fisherman, injured his right shoulder in 2001. In the course of retrieving a net he received a sudden jolt to his shoulder when a trawl cable jumped on the winch drum. [2] Pain persisted despite shoulder operations in 2002 and 2004. A further accident on 17 June 2005, when Mr Crook slipped and fell onto his outstretched arms, not only further damaged his right shoulder but also resulted in injuries to his left shoulder and wrist. [3] Further substantive treatment was not feasible and by 2005 it was recognised that Mr Crook was significantly restricted in heavy lifting and, in particular, carrying or reaching, pushing or pulling above shoulder height, and that as a result a return to commercial fishing was not appropriate. [4] Instead the Corporation began exploring whether other work types would be suitable for Mr Crook. Initial occupational and medical assessments were undertaken in 2005, 2009 and 2010, with the medical assessments in particular finding that a number of different work types were likely to be medically suitable for Mr Crook. [5] As a result in 2011 a vocational independence process was commenced, with a Vocational Independence Occupational Assessment ("VIOA") undertaken by Laurence Bell on 14 February 2011, and a Vocational Independence Medical Assessment ("VIMA") by Dr Robert Blackmore, aviation, occupational and environmental physician, on 28 March 2011. As a result of these assessments the Corporation, by a decision dated 6 May 2001, determined that Mr Crook was vocationally independent, able to work for 30 hours or more per week in the following work types: Ships master. Ships officer. Marine transport professional (NEC).' Radio dispatcher. Insurance risk surveyor. Insurance loss adjuster (fishing industry). Maintenance planner. Polytechnic teacher - trades. Not elsewhere categorised. [6] Mr Crook challenged the decision but it was upheld at review. On appeal Mr Crook raised the following issues that require to be determined in this judgment: [a] That the vocational independence process should not have commenced because there was a lack of objective evidence that Mr Crook could sustain full time employment, and that his rehabilitation was otherwise not complete; [b] That the VIOA was materially flawed; and [c] That the VIMA was materially flawed. [7] In addressing these issues I note that the vocational independence process has been widely canvassed in the District Court, where it has been continuously emphasised that a holistic and common sense approach should be adopted when considering vocational independence matters. [8] In short the correctness or otherwise of the decision will come down to the robustness of the process, the assessments themselves and a consideration of whether in the circumstances, the decision makes sense. Issue 1 - Whether Vocational Independence Assessment was Premature [9] Pursuant to s 110(3) of the Accident Compensation Act 2001: (3) The Corporation must not require the claimant to participate in an assessment- (a) unless the claimant is likely to achieve vocational independence; and (b) until the claimant has completed any vocational rehabilitation that the Corporation was liable to provide under his or her individual rehabilitation plan. [10] Ms Brown, as counsel for Mr Crook, submitted that neither s 110(3)(a) or (b) had been satisfied. Specifically Ms Brown pointed to the fact that: [a] There was no evidence that Mr Crook had worked since 2008; [b] Mr Crook had never undertaken a work trial; [c] Mr Crook's general practitioner Dr Trent Boulter had provided a medical certificate on 27 June 2012 indicating that Mr Crook's condition limited his ability to work even 15 hours per week and that such was not likely to improve within a year; [d] Neither Dr Bill Glass, occupational medicine specialist, nor Dr David Black, environmental specialist, in their reports of 19 April 2012/14 June 2012 and 22 November 2013/25 February 2014 respectively considered Mr Crook was capable of returning to full time employment; and that [e] A bilateral myofacial pain syndrome, identified by Dr W D Turner in a medical assessment undertaken at the beginning of 2005 was otherwise never addressed and that therefore Mr Crook's rehabilitation was not complete. Discussion and Analysis - Whether Vocational Independence Assessment was Premature [11] With regard to the first four matters raised it is clear that they do not support an argument that the vocational independence process was premature. In particular it is clear from s 110(3) that the time for determining whether a claimant is likely to achieve vocational independence is before the vocational independence process commences. At the time the vocational independence process commenced successive initial occupational and medical assessments between 2005 and 2010 had found it likely that Mr Crook could medically sustain work in a variety of occupations. Specifically the initial medical assessment ("IMA") undertaken by Dr Keith Murray on 1 September 2010 had identified 11 work types as being medically suitable for Mr Crook including the eight work types for which Mr Crook was ultimately found to be vocationally independent. [12] In addition to this evidence it is well established that the absence of work trials is not determinative as to whether a claimant is ready for a vocational independence process or otherwise there would be no need for a vocational assessment process to occur. Similarly the medical certificates issued by Dr Boulter and relied upon by Ms Brown were issued after the decision to proceed with the vocational independence process. By the time Dr Boulter issued the certificates in question, both the occupational and medical assessments had found Mr Crook to be vocationally independent. Dr Boulter's certificate must in any event be contrasted with the Vocational Independence - Medical Practitioner Questionnaire ("VI Questionnaire") completed by the same Dr Boulter immediately after the Corporation took the decision to proceed with the vocational independence assessments. This questionnaire in fact confirmed that Mr Crook had capacity to work in other than his pre-injury employment, specifically in "limited sedentary activities" [13] Finally, with regard to the first issue, I conclude that neither the reports of Dr Glass nor Dr Black provide any basis for concluding that the vocational independence process was commenced prematurely. As well as the fact that these reports were prepared a significant period of time after the decision to proceed with the vocational independence process, neither appears to have noted Dr Boulter's comment in the VI Questionnaire, including specifically that there was no outstanding treatment issues or any potential or prospective treatment contemplated. In addition Dr Glass's conclusions also ignored the conclusions drawn in Dr Murray's final IMA of 1 September 2010 and was therefore not aware that only four months prior to the decision Dr Murray had concluded that "pain is not a significant issue. No further pain management is required". Likewise Dr Glass appears to have had no idea that Mr Crook had been provided with support from Psychological Services from 2006, noting only in his addendum report that Mr Crook had "psychological opinion" rather than being provided with therapy aimed at "reduction and resolution towards ACC, future focus and improvement in mood", as well as some pain management strategies. It is not clear from the evidence before me just how much therapy was provided to Mr Crook, but different assessments record that he found it useful. Finally Dr Glass's report is also based on the mistaken belief that Mr Crook had not worked for some 10 years prior to the vocational independence 2 Dr Glass's first report was 15 months post the decision to proceed with the vocational independence process, while Dr Black's first report was 34 months after the vocational independence process commencing. process commencing, which is just not correct, with it being clear that Mr Crook was in fact still undertaking commercial fishing as late as 2008 and voluntary work after that date. [14] Likewise Dr Black's reports lack any detailed analysis of Mr Crook's condition, and certainly there is no analysis of the conclusions reached in the IMA that would suggest there was in fact any outstanding rehabilitation required by the time the decision was taken to proceed to the vocational independence assessments, still less that Dr Murray's conclusions in particular, reached in the course of two comprehensive examinations could not be relied upon in determining that Mr Crook was in fact ready to be assessed for vocational independence. [15] Finally to the extent that any rehabilitation was considered to be outstanding as at the time the vocational independence process commenced, it is clear from Ms Brown's submissions that this was medical in character. Section 110(3) of the Act makes it clear that it is outstanding vocational rehabilitation that must be completed prior to the vocational assessments taking place. Conclusion - Whether Vocational Independence Assessment was Premature [16] For the reasons set out above I therefore conclude that the vocational independence process was not commenced prematurely. Issue 2 - Issues with the Occupational Assessment [17] With regard to the operational assessment Ms Brown submitted that: The assessor has recommended as suitable work types for which Mr Crook does not have the requisite registration or licensing; The assessor has recommended work types for which Mr Crook does not have the relevant experience/qualifications; The assessor has placed a limitation on a generic work type; The assessor has recommended work types for which Mr Crook's computer skills are inadequate. [18] Specifically it was Ms Brown's submission that the occupational assessor, Mr Bell: ... recommended as suitable work types for which Mr Crook does not have the requisite registration or licensing, or the relevant skills and experience, such that the work types cannot be considered suitable. [19] The criticisms made have been discounted by Mr McBride on behalf of the Corporation, who submitted that there were no flaws in Mr Bell's assessment. Discussion and Analysis - Occupational Issues [20] The issues raised by Ms Brown are best considered as part of an analysis of the specific work types under consideration. Ship's Master [21] The work type worksheet for Ship's Master baldly describes this role as an individual who "controls and manages the operations of a ship or boat". No size limit for the vessel being controlled or managed is specified, the work type seemingly deliberately encompassing all manner of ships and boats from super tankers and passenger liners to river ferries and small fishing vessels. As it is well established that the client being assessed must be able to perform all of the possible tasks identified in a particular work type for it to be occupationally suitable, in the case of the Ship's Master work type it means that a client like Mr Crook must have the qualifications and in particular the appropriate registration or licensing to be either the master of any ship of any size potentially voyaging to any location. It is immediately apparent that in undertaking the VIOA, Mr Bell has not grappled with the issues of what type of vessels Mr Crook is in fact qualified to command, restricting his analysis to the broad statement that: Grant has the necessary experience and qualifications to control and manage the operations of a ship or boat. [22] This is in marked contrast with the analysis undertaken by the same Mr Bell six months before when he completed a Complex Initial Occupational Assessment ("CIOA") in respect of Mr Crook. In his consideration of whether Mr Crook could carry out the Ship's Master work type, Mr Bell had stated under the heading "strategies for assisting the claimant to become work ready in this Work Type: For vessels over 50 metres Grant would need to undertake the deep sea mate/deep sea skipper licence and could go on to undertake the foreign going master licence. [Emphasis added] [23] These comments were endorsed by Mr Crook at the time, but despite clearly implying that Mr Crook was not in fact occupationally qualified for the work type, no additional vocational training to address the issues identified was in fact provided. Surprisingly then, when it came to the VIOA, Mr Bell, although otherwise confirming his reasoning for the suitability of the work type set out in the CIOA, simply deleted his comments in the CIOA regarding the need for further vocational training. No analysis or explanation for now apparently approving the work type was provided by Mr Bell, despite knowing the strategy he had identified had not been completed. At the very least it would appear from Mr Bell's own analysis at the time of the CIOA that notwithstanding Mr Crook has New Zealand Coastal Master and Commercial Launch Master qualifications he is not able to be a Ship's Master in terms of the work type in respect of vessels 50 metres or more in length without further training and obtaining further qualifications. In addition, although not discussed at the hearing, it is clear that since at least 2000 marine qualifications in New Zealand have been going through a period of significant change. While at the time of the VIOA, the New Zealand Coastal Master qualification held by Mr Crook still had status as the equivalent of the New Zealand Offshore Master it was restricted to areas "within 100 miles of the coast", which in itself appears to be a further significant limitation in the scope of Mr Crook's qualifications. Taking these matters together, I conclude that Mr Bell's analysis is significantly flawed and I conclude that the Ship's Master work type was not occupationally suitable for Mr Crook. Marine Rules Part 3 1B pursuant to the Maritime Transport Act 1994 Ship's Officer [24] The Ship's Officer work type worksheet, as with the Ship's Master worksheet does not provide any limit on the size of the ship that is being contemplated. Mr Bell considered that the work type was suitable on the basis that: Grant has over 20 years experience in the marine industry. He has the skills necessary to navigate a ship by supervising the ship's course and speed according to pre-determined passage plans and safety procedures. He has experience in controlling the safe operation of a ship and supervises and coordinate the activities of deck crew. [25] As with the Ship's Master work type however, in completing the CIOA in July 2010 Mr Bell had identified that in order to assist Mr Crook to become work ready in this work type: Grant has a relevant tertiary qualification - depending on the vessel size and its destination he may need to undertake the Deep sea mate/Deep sea skipper licence and could go on to undertake the Foreign Going Master licence. [Emphasis added] [26] Having identified this issue, it was inappropriate for Mr Bell to not then address it in the VIOA, as on the face of it it clearly indicated that there were significant limitations with Mr Crook's ability to perform the work type expressed in such broad terms as the worksheet provided. Accordingly for similar reasons to those set out with regard to the Ship's Master work type I therefore conclude that the Ship's Officer work type was not occupationally suitable for Mr Crook. Marine Transport Professional NEC [27] The third work type that Mr Crook was found to be vocationally independent was Marine Transport Professional (NEC). As the name suggests this would appear to be an exceptionally broad category, the job description noting: Description This occupation group covers marine transport professionals not elsewhere classified. Occupations in this group include: marine certification and surveillance manager, marine safety officer and ship's purser. Work Tasks (may include any combination of the following): Controls and directs shipping operations to ensure the safe and efficient loading and transport of cargo and passengers; ensures compliance with regulations pertaining to safety at sea and protection of the marine environment. [28] The work type is clearly a catch all definition, useful perhaps for statistical purposes in categorising occupations (being one of the primary purposes of the ANZCO Standard Classification of Occupations) but of little assistance in providing a meaningful occupation or work type that Mr Crook could be said to be vocationally qualified for. The potential breadth of the work type is seen by Mr Bell considering that it provided an avenue to utilise Mr Crook's search and rescue expertise gained while volunteering with the local coastguard, while Mr Bell also appears to indicate that it encompasses operation of small vessels." At the same time it is clear that Mr Bell has not turned his mind to the width of the work type and whether Mr Crook is in fact qualified to address all possible types of work that may be incorporated within the definition. [29] Ultimately given the substantive vagueness as to what could possibly be encompassed within this work type Mr Bell's conclusion is in fact that Mr Crook's experience and qualifications must qualify him for at least some jobs that could conceivably fall within this categorisation rather than as required in a vocational independence context, all possible tasks that Mr Crook can perform. The reason for this would appear to be largely because Mr Bell has not been able to identify what those tasks might be. Put another way it is quite unfair to use a catch all category of this type which does not in fact describe an actual occupation and I conclude that the use of such a nebulous category is simply not appropriate for the vocational independence process. Accordingly while Mr Crook certainly has qualifications and experience which may make him occupationally qualified for different jobs within a maritime context and indeed within this overall category, I am not satisfied that he is qualified for the work type as a whole because of its overall lack of any substantive definition. I therefore conclude that Mr Crook was not qualified for this work type. Specifically Mr Bell identifies the salary range for the work type as being limited to inshore launch masters. Radio Dispatcher [30] Ms Brown's primary occupational objection to the suitability of this work type was that in common with a number of other work types there is a requirement for driving, but at the time of the occupational assessment, Mr Crook did not have a driver's licence, having been disqualified from driving with Mr Bell noting that Mr Crook's licence was not due to be returned until March 2011. I do not consider that there is any substance to this issue. Mr Bell was clearly aware of the issue and his conclusion that the licence was to be returned in March 2011 was not challenged. I consider that Mr Bell was therefore able to identify suitable work types on the basis that Mr Crook's driver's licence would shortly be returned. It must also be noted that the occupational assessment is only the first part of the vocational independence assessment and that the critical date is not the date of the occupational assessment but rather the vocational independence decision itself. In the event it appears Mr Crook would have already had his driver's licences returned prior to the VIMA in March 2011, and certainly he would have had a driver's licence as at the date of the vocational independence decision which found him to be vocationally independent in the Radio Dispatcher work type and the other work types for which driving was a vocational requirement. [31] No other occupational issues were raised by Ms Brown with regard to this work type. Instead as Mr Bell noted, consistent with the comments of Christine Nolan, career counsellor, in her report on behalf of Mr Crook, it is clear that Mr Crook has considerable expertise and training with regard to this work type through his work at sea, his experience with the local fisherman's radio, and in teaching coastguard courses on radio operations which taken together I conclude make it clear that this work type was indeed occupationally suitable for Mr Crook. Insurance Risk Surveyor [32] Ms Brown submitted that in relation to this work type the tasks identified and in particular those involving the inspection of property, evaluating safety and security systems, preparing reports, compiling data and estimating costs identified in Insurance risk surveyor, insurance loss adjuster (fishing industry), maintenance planner and polytechnic teacher - trades the worksheet were "a far cry" from Mr Crook's previous experience in the fishing industry and this was not alleviated by the work type worksheet providing that on the job training was sufficient for entry level positions. In Ms Brown's submission the comments of Judge Ongley in Smith v Accident Compensation Corporation were apposite. [51] It seems logical that a motor vehicle sales person would have to deal intelligently with finance and payment options, even if the paperwork were to be done by some other administrator. Mr Smith was not shown to have any knowledge in that area. I find it very doubtful that the appellant's skill and experience matched the requirement of the motor sales work type. He had a general knowledge of vehicle and servicing, because he worked as a taxi driver for 12 years. But there is absolutely nothing in his training and experience touching on advising or assisting with pricing and finance options, or documenting sales, finance and insurance contracts. I do not accept that these are on the job training aspects for a person with the appellant's limited experience. While he is no doubt capable of learning, I am not satisfied that this kind of upskilling would be seen by an employer as routine on the job training for new employees. [52] On the job training is the type of routine introductory learning that an otherwise suitably qualified applicant would require to adapt to a particular work type. Vocational rehabilitation is the acquisition of skills that can be offered to an employer by a reasonably qualified job applicant. The dividing line is difficult to define and varies according to the claimant and the work type. The ability to learn quickly may be a qualification in itself. In this case, there is very little evidence that the appellant, without suitable vocational rehabilitation, would meet a level of qualification that a reasonable employer would accept, nor that he had the ability to quickly acquire the necessary record keeping and technical skills on the job. I find Ms Nolan's assessment is persuasive. [33] In addition Ms Brown also submitted that in Mr Bell finding that Mr Crook had the ability to work as an Insurance Risk Surveyor "within the marine industry" in fact showed that the work type was not occupationally suitable for Mr Crook given that the work type itself was not limited just to the marine industry. [34] I agree with both issues raised. In particular I agree that to the extent Mr Bell has purported to limit the work type to the marine industry, such a limitation cannot be sustained given the broad application of the work type worksheets outside the marine industry. Likewise with regard to the relevance of the lack of qualifications Smith v Accident Compensation Corporation [2013] NZACC 118 required for an entry level position in the work type, in the CIOA Mr Bell had in fact commented that: Grant has not worked within the insurance industry before and may benefit from a work trial, some in service training or further computer skills raining to enhance his employability. For entrance level positions no qualifications are necessary. Therefore Grant is vocationally prepared for an entry level role of Insurance Risk Surveyor. [35] Adopting Judge Ongley's reasoning in Smith, it is clear that Mr Bell's reliance on the lack of qualifications necessary for an entry level position is misplaced. I therefore consider that the Insurance Risk Surveyor work type was not occupationally suitable for Mr Crook. Insurance Loss Adjustor (Fishing Industry) [36] Similar arguments to those considered with regard to the Insurance Risk Surveyor work type were raised by Ms Brown with regard to the Insurance Loss Adjuster (Fishing Industry) and I conclude that for similar reasons the work type was not occupationally suitable for Mr Crook. [37] In particular, while the title of the work type indicates that it is limited to the fishing industry, the worksheet for the work type is in fact the general worksheet for an insurance loss adjuster, and the work type accordingly is specified as being: Inspects damaged buildings, equipment and motor vehicles and estimates the cost of repairs; estimates business losses resulting from fire, theft and other business disruptions; reports the extent of damage and estimated costs to the insurer. [38] Given, as with the other work types Mr Bell had not identified any changes necessary to the work type worksheet in determining that the work type was suitable for Mr Crook, simply stating that the work type was limited to the fishing industry, does not mean that Mr Crook had the ability to perform the wider tasks specified as to comply with the work sheet. Mr Crook would still have to meet the wider work tasks because they remain in the work sheet. An overall lack of suitability is in fact once again reinforced by the comments of Mr Bell in the CIOA where, as with the Insurance Risk Surveyor work type, Mr Bell had identified Mr Crook's lack of experience in the insurance industry, and cut and pasted (complete with the wrong work type) the comment that: Grant has not worked with the insurance industry before and may benefit from a work trial, some in service training or further computer skills training to enhance his employability. For entry level positions no qualifications are necessary. Therefore Grant is vocationally prepared for an entry level role of Insurance Risk Surveyor. [39] As with my conclusions with regard to the insurance risk surveyor work type, relying on the comments of Judge Ongley in Smith it is again clear that Mr Bell's reliance on the fact that qualifications were not necessary for entry level positions to be misplaced. I accordingly conclude that the Insurance Loss Adjuster (Fishing Industry) was not occupationally suitable for Mr Crook. Maintenance Planner [40] With regard to the Maintenance Planner work type it was Ms Brown's submission that as there was no provision for starting at entry level, it was necessary for Mr Bell to have established that Mr Crook had three years relevant experience in this field. Ms Brown relied in particular upon the report of Ms Nolan who noted that: Mr Crook's experience is limited to planning and coordinating maintenance on his own boat. It is unlikely that he has any experience in preparing schedules and reports for this, and it is likely that he did some of this work himself, with no need to coordinate others to do the work. [41] Interestingly in his CIOA Mr Bell did not in fact say that Mr Crook was occupationally qualified for the maintenance planner work type. Instead he noted: Reason (how work type matches skills): Through his experience as a skipper, Grant has developed the transferable skills necessary to deliver schedules and planning strategies for the up keep and maintenance of plan equipment. He also has experience in co-ordinating and monitoring the maintenance undertaken on plant and equipment. Strategies for assisting the claimant to become work ready in this Work Type: Grant may benefit from further updating his computer/IT skills. Grant has the relevant experience to be vocationally prepared for the role of maintenance planner. [Emphasis added] [42] In the event no "vocational preparation" was in fact provided to Mr Crook between the CIOA and the VIOA. Instead in the VIOA Mr Bell provided no comment about his earlier indication of a need for vocational preparation and no explanation why this was now no longer required. Again it was simply deleted. [43] Against this background I also note the work type is again very general with the description and work type providing: Description: Develops maintenance planning strategies, and schedules, co-ordinates and monitors the maintenance of all plant equipment. Work Tasks (may include any combination of the following): Develops schedules and planning strategies for the up keep and maintenance of all plant equipment; co-ordinates and monitors the maintenance undertaken on all plant equipment. [44] Despite this, Mr Bell at no stage in either the CIOA or VIOA undertook any investigation or analysis as to whether the maintenance that was carried out by Mr Crook in relation to his fishing boat might relate to the much wider requirement for "up keep and maintenance of all plant equipment" (whatever that might mean) or whether the type of maintenance carried out by Mr Crook on his own boat was of a similar type to that described in the work tasks. [45] Taking these matters together I am not satisfied that Mr Crook was occupationally suited to the Maintenance Planner work type. Polytechnic Teacher - Trades [46] In relation to the Polytechnic Teacher - Trades work type Ms Brown appropriately conceded that Mr Crook's extensive experience in the fishing industry meant that he would have much to offer students as a Polytechnic Teacher - Trades but despite this submitted that Mr Crook was not qualified for the work type as set out. In particular Ms Brown submitted: ... the work type detail sheet does not clarify whether the applicable experience refers to experience in the relevant trade or in teaching or both. However, it is submitted that experience in a trade cannot substitute for teaching experience and skills. That submission is supported by the work type detail sheet, which variously lists the work tasks as identifying student needs and creating learning options, developing a curriculum, teaches using various teaching aids, marks and grades assignments, provides feedback, records progress and consults with other stakeholders. The mental activities required are similarly high level. [47] In contrast Mr Bell's analysis in the VIOA as to the suitability of the work type was limited to the following comment: Grant has developed a breadth and depth of knowledge in the fishing industry that would be available to teach to others. He has communication and supervisory skills that would be transferable for the purpose of teaching trade subjects (e.g. fishery, engineering, navigation or radio communication) within a prescribed course of study at polytechnics or other training institutes to tertiary students for vocational education and training purposes. Grant has undertaken some teaching for the coastguard and states that he has taught courses on radio communication, navigation and the day skippers licence. [48] These comments never specifically assert that Mr Crook was in fact occupationally qualified to be a Polytechnic Teacher - Trades. Instead, as with a number of the other work types that have been considered, were the subject of comment by Mr Bell in the CIOA where under the heading of "strategies for assisting the claimant to become work ready in this work type" Mr Bell stated: As this is a new role for Grant, he may benefit from a work trial, further computer skills he states that his typing is not very good so he may benefit from using (voice recognition software) or on the job training. He may also benefit from undertaking his adult teaching certificate this qualification is commonly offered to trade specialists upon undertaking a teaching role. [49] The issues identified in the CIOA are not addressed in the VIOA. As with other work types, while the reason for selecting the work types remain, the strategies were simply deleted. Ultimately I accept Ms Brown's submission Mr Crook's ability to address the specific teaching requirements set out in the work sheet for the work type were just not addressed by Mr Bell in the VIOA. Taken together I am not satisfied that Mr Crook was occupationally qualified for the Polytechnic Teacher - Trades work type. Conclusion - Occupational Issues [50] To recap, for the reasons set out above I have concluded that of the eight work types that Mr Crook was found to be vocationally independent, only one was in fact occupationally suitable for Mr Crook, that being the Radio Dispatcher work type. Issue 3 - Issues with the Medical Assessment [51] Ms Brown criticised the VIMA undertaken by Dr Blackmore on the following basis: The assessor has placed qualifications on work types deemed sustainable; The assessor has failed to provide sufficient detail as to Mr Crook's functional capacity, despite relying heavily on such when assessing the work types; . The assessor has provided inconsistent reasoning across work types; The assessor has relied on Mr Crook's past vocational experience when assessing the sustainability of some of the work types; . The assessor has failed to consider a number of relevant factors that impact upon the sustainability of the work types; The work types are unsustainable given Mr Crook's injury limitations. [52] In contrast it was Mr McBride's submissions that the medical assessment was not flawed and in particular: 76. In terms of the medical assessment, ... at the time and in the circumstances, and for the reasons clearly explained, Dr Blackmore had properly considered and addressed medical factors relating to particular work types. 77 . At different points in time, and based on uncertain different information, different medical practitioners had expressed different views. Some of those have already been identified as wrong - as the information they had relied on was wrong. The base line of evidence of others has not been identified 78. No flaw has been shown in the opinion of Dr Blackmore. 79. Rather, the myriad of complaints made only tends to indicate that the overall challenge is to outcome, rather than any identified or particular flaw. Discussion and Analysis - Medical Issues [53] It is immediately apparent looking at the evidence before me that Dr Blackmore's VIMA is considerably less polished and comprehensive than the three IMA completed by Dr Marshall and Dr Murray between 2005 and 2010. Despite this however it is clear that the overall conclusions that Dr Blackmore drew about Mr Crook's physical injury were largely consistent with those earlier IMA. In particular it is clear that at an overall level Dr Blackmore has concluded Mr Crook has "ongoing pain problems which restrict many of his activities involving heavy lifting and reaching above shoulder height". With reference to Mr Crook's pain Dr Blackmore found that it was "not typical of a chronic pain syndrome and only occurs with effort in above shoulder height use". As a result Dr Blackmore concluded Mr Crook "has many skills and attributes that can be usefully employed while not involving use of his shoulders". [54] As noted such findings are entirely consistent with the conclusions reached in the IMA and in particular the conclusions reached by Dr Murray in his final IMA six months before. Dr Blackmore's conclusions are in addition not challenged by any contemporaneous medical opinion and, on the contrary, as noted at [12] above, even Mr Crook's general practitioner, Dr Boulter, accepted Mr Crook had work capacity outside his pre-injury occupation at the time the vocational independence process commenced. Likewise I do not consider that the reports of either Dr Glass or Dr Black provide a sufficient basis to set aside the VIMA. As noted above, Dr Glass's report had a number of significant factual issues including having not considered the relevant evidence. Likewise Dr Black's assessment was not only undertaken a significant time after the VIMA but, more specifically, was undertaken after Mr Crook had suffered a further significant accident in September 2012 in which Mr Crook sustained a fractured right femur, a fractured right foot and spinal injuries. It is therefore difficult to determine with any certainty as to what extent that subsequent injury affected Mr Crook's presentation and functional limitations. Dr Black in fact acknowledged that Mr Crook had disabilities arising from those new injuries, notwithstanding that he also expressed the view that the most recent injuries were not the predominant problem preventing him from working. Likewise I do not consider Dr Black's reliance on unresolved pain issues identified in Dr Turner's 2005 report can be sustained given the careful analysis provided after that date from Dr Marshall and Dr Murray in their respective IMA, and conclude that in this regard, Dr Blackmore's assessment better reflects the conclusion drawn in those IMA assessments. [55] Notwithstanding these comments I accept a number of the criticisms made by Ms Brown. It is clear that Dr Blackmore delved into occupational issues which were not relevant to his assessment and this occasionally resulted in a confusing analysis with regard to the assessment of the medical suitability of particular work types, for example as with his unintelligible endorsement of the Polytechnic Teacher - Trades work type. [56] Given my conclusion rejecting the occupational suitability of the work types, it is not however necessary to consider all of Mr Blackmore's analysis across each of the eight work types. Instead the focus is only on the Radio Dispatcher work type, as this was the only work type I found to be occupationally suitable. With regard to this work type Dr Blackmore recorded: The work detail sheet requires a sedentary physical demand with bending and stretching up and across are not a significant component and lifting and carrying and holding is unlikely to exceed the sedentary demand level. This work option does not exceed his current functional capacity hence I am of the opinion that there is nothing in the work detail sheet which would exceed his functional capacity and thus this work type is medically sustainable full time 30 or more hours per week without risk of further injury or harm to Mr Crook. [57] Neither Dr Glass nor Dr Black's reports substantively challenge this conclusion. Dr Glass did not deal with the work type individually while Dr Black's conclusion in his final report that the work type was "repetitive and invariably involves significant keyboard work" does not reflect the work type worksheet, nor does it reflect the evidence available as to Mr Crook's experience with the role noted in the VIOA and by Ms Nolan in her report. Of greater significance however was Ms Brown's reliance upon Mr Crook's own comments in his evidence at review and provided to Mr Bell in respect of the VIOA, that due to the medications he was taking: "I drift off, can't concentrate, this is a very responsible position and I would be putting people at risk. My medication gets in the way of this." "For as long as I am on Citalopram and Nortriptyline I keep going (and thinking) round in circles. I can't concentrate on any work. I am clinically depressed and ACC exacerbate the situation. I need a psychiatric assessment and my life back - you can add this to every job as well. [58] The issue of Mr Crook's medication was considered carefully by Dr Murray in the third IMA six months before the VIMA. At that time Dr Murray noted that Mr Crook's medication was "Paracode for pain, 4-6 daily. Citalopram 40 mg daily, Ventolin inhaler" and concluded: My opinion is that the perceived side effects of his medication would not be likely to interfere with his ability to work. His mood will be improved by a return to work. Many people take similar medication at similar doses, and it is not particularly known to interfere with work ability, so I think he can be reassured on this count. It is likely that a degree of anxiety regarding a return to work impacts upon his beliefs. [59] In contrast Dr Blackmore recorded that Mr Crook's medication at the time of the VIMA was "Paracode 12-14 per day; Citalopram 20 mg x 2 in the morning; Codapen and Nortriptyline"." Despite noting this, as Ms Brown identified no comment was provided by Dr Blackmore as to the possible effects this medication may have had on Mr Crook. Clearly the Paracode usage has increased between 2 and 3.5 times and Codapen and Nortriptyline has been added since Dr Murray noted his conclusions regarding Mr Crook's medication. [60] This is an important issue. It was treated seriously and appropriately by Dr Murray in the IMA and raised by Mr Crook in the vocational independence process, being recorded by Mr Bell in the VIOA (and as a result clearly before Dr Blackmore). Given that the issue was squarely before him and given that the medications had changed since Dr Murray's earlier assessment it was incumbent upon Dr Blackmore to address this issue, but he failed to do so. In my view given the totality of the evidence before me this is a significant omission. I am accordingly satisfied that given the nature of the Radio Dispatcher work type which records in the worksheet that the "mental activities necessary include communication, technical, research, planning and decisionmaking skills", that the evidence does not show that Elsewhere Dr Blackmore also noted Mr Crook's use of Ventolin. the work type was in fact medically suitable for Mr Crook, and indeed I consider the failure to address this issue would have been equally problematic with regard to each of the other work types identified by Dr Blackmore as being medically suitable. Conclusion - Medical Issues [61] Accordingly for the reasons set out above I conclude that the Radio Dispatcher work type was not medically suitable for Mr Crook. Decision [62] As a result of my conclusions it is apparent that there is in fact no work type which is both occupationally and medically suitable for Mr Crook. Mr Crook was accordingly not vocationally independent as at 6 May 2011. The appeal is therefore allowed. The review decision dated 5 September 2012 is quashed and the decision of the Corporation dated 6 May 2011 is set aside. Mr Crook's weekly compensation is to be resumed. Mr Crook is also entitled to costs. If these cannot be agreed within one month I will determine the issue following the filing of memoranda. [63] Although not part of the reasons for this judgment I note that throughout the reports before me Mr Crook had consistently sought vocational assistance from the Corporation in order to return to the work force in a field other than in commercial fishing. In this vein it is apparent that had Mr Bell's recommendations for vocational rehabilitation in the CIOA been followed through a number of the work types excluded as unsuitable on occupational grounds could well have ultimately been appropriate for Mr Crook, and proper consideration should be given as to whether such assistance can now be appropriately provided. Judge L G Powell District Court Judge ACR 607-12-Crook.doc(aw)