McIvor v Accident Compensation Corporation

IN THE DISTRICT COURT AT NAPIER [2014] NZACC 70 ACR 666/11 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN GRANT McIVOR Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 17 September 2013 Appearances: MA Williams (advocate) for Mr McIvor S L Churstain for the Corporation Notes of appeal evidence available: 7 October 2013 Provision of further evidence and submissions completed: 19 February 2014 Judgment: 20 March 2014 JUDGMENT OF JUDGE RODERICK JOYCE QC Reason for appeal [1] On 6 July 2007 Mr McIvor suffered a back injury at work on which account the Corporation gave him cover. The original claim form had incorporated this diagnosis: $572 lumbar sprain left N12C2 lumbar disc prolapse with radiculopathy [2] On 11 February 2011 the Corporation held Mr McIvor to have vocational independence in the form of an ability to work for 30 or more hours a week in the job types: Small business manager Stock clerk Despatch and receiving clerk 3] Mr McIvor sought a review of that decision but that was dismissed on the basis that the reviewer could find no flaw in the Corporation's assessment in favour of the fact of vocational independence. Mr McIvor has since appealed. Background [4] I count the following to be pertinent: in consequence of the injuries received in the accident and on 26 May 2008 Mr Rao, orthopaedic surgeon, operated on Mr McIvor, the description of the operation being: Posterior L5/S1 and Interbody Fusion With Decompression of both L5 Nerve Roots In an 11 November 2008 follow up report to Mr McIvor's GP, Mr Rao spoke of pain troubles Mr Mclvor had suffered following physiotherapy but said that his x-rays certainly looked excellent. He noted that a graduated return to work assessment had been done. He said that he thought that "fine" but with a rider that amounted to support for a "hasten slowly" approach. A work preparation programme dated 28 November 2008 noted that: Grant is most interested in returning to his painting trade. If he is not able to do this then he is most interested in running his own business. It was then asserted that: Grant has basic computer skills and would enhance his employment opportunities by extending these ... Grant's case manager requested computer lessons on his referral. Although he is quite sure he will return to his trade he is happy to do whatever is required of him in this programme ... A supplementary December 2008 report indicated that Mr McIvor had been very co-operative in the course of the work preparation programme process. The report made reference to computer training. It was said that Mr McIvor was at a disadvantage as he did not have Microsoft Office programmes on his home computer to allow him to practise. It was, however, claimed that he had picked up computer skills quickly, had a good memory and had made good progress despite - particularly with Word and Excel - lack of opportunity to practise. Mr Rao reported again on 28 May 2009. He rehearsed his earlier statement that the x-rays looked excellent and otherwise noted that: By and large he has found the surgical procedure worthwhile, but he continues to have discomfort in his back and cannot really get on with his work as a self employed painter to the extent he would like. He has tried the odd 4-5 hour periods and has coped reasonably well, but any strenuous work he thinks will be more difficult. I think all of this is part of his rehabilitation programme ... he ... takes Nurofen for pain if he needs it. He can be disturbed at night with back pain ... I have prescribed Grant with some Paradex, encouraged him to increase his activity and as a self employed painter/decorator. I think realistically it may be another 4-6 months. On occasions this can unfortunately take longer ... 5] A June 2009 IRP identified that a physio/functional reactivation programme had been underway but had proved too intense, hence a reference back to physiotherapy. [6] In the area of pre-employment preparation, the reported accomplishments included computer training and there was the observation about pain that: Grant is able to pace himself and manage his pain to keep it at about 4/10. Grant has worked very hard to improve his cardiovascular fitness and core strength. He has learned to manage his pain well and pace himself with the exercises he does. (Emphasis added) [7] Coming now to June 2010, a work preparation programme completion report of the 14" of that month records that between 27 May and 10 June 2010 Mr McIvor had had 10 hours computer training, with Word and Excel being principally addressed. It had been suggested to him (so it was reported) that he might like to go to free computing classes at the Eastern Institute of Technology where he could practise and extend his skills. The end observation was: Grant has familiarity with a computer which would enable him to gain clerical roles. Many of these have their own in-house system which he would be taught on appointment. [8] Mr McIvor was reviewed by Mr Rao on 24 August 2010. The surgeon reported that pain relief was still maintained, albeit with some residual discomfort, and that Mr McIvor certainly looked "a lot more mobile". [9] A 14 November 2010 GP's questionnaire is, unfortunately, very hard to read but I could decipher an end observation that further orthopaedic opinion may be required. [10] A 29 November 2010 VIOA refers to Mr McIvor having gained from computer training during rehabilitation. As to the work types of small business manager, stock clerk and despatching and receiving clerk (each of which obviously requires appropriate computer skills) it adopted the position that Mr McIvor in fact now had basic keyboard and computer skills. [1 1] I come next to the 19 January 2011 report of Dr David Prestage, consultant occupational physician, prepared for the Corporation. In his report: He said that the already mentioned surgery had led to resolution of Mr McIvor's leg pain but he had developed low back pain which had persisted, and he had been unable to get back to work as a painter/decorator despite a couple of attempts. He noted that: Mr McIvor has pain all the time. It is present in the lower lumbar spine and is made worse with any extension of spine. It feels as f something is pinching and grabbing all the time ... Mr McIvor said he struggles to walk longer distances, or go up and down hills. He can walk around a supermarket but his wife has to carry the grocery bag. He can drive for about an hour but his pain is aggravated by then. He said he cannot stretch up to hang washing up. He cannot vacuum or start a lawnmower, ... he cannot mow his lawn as it is on a slope. Sleep is not particularly good. He said his wife cannot sleep in the same bed as he is frequently tossing and turning. ... [12] Under the heading "summary and assessment" Dr Prestage wrote that: Although facet joint injections had provided some temporary relief (and were to be repeated) it was likely that their benefit would be temporary. There did not appear to be any other untried therapeutic procedures that would likely improve Mr McIvor's situation. He was only capable of work up to a light level of physical demand and could not sit for long periods, which made driving jobs inappropriate. He needed regular opportunities for flexibility of movement. A job that fitted in with those limitations would be one similar to the physical demands of Mr McIvor's current activities of daily living, and such should be within his capabilities. 13] Dr Prestage explained that he had assessed the work types identified in the occupational assessment on that (similarity to daily living activities) basis but then mentioned that Mr McIvor had told him that he did not have computer skills sufficient for an employer to give him a desk job. [14] Working through the occupation types as identified by the occupational assessor, Dr Prestage supported those of small business manager, stock clerk, and despatching and receiving clerk. [15] His comment in each case was identical, being: According to the work type detail sheet this is sedentary work with constant sitting and occasional standing and walking. The other physical demands are not significant. There are opportunities for flexibility of movement. Taking nto account the history, his presentation and his pain Mr McIvor has the capacity to undertake (these work types) for 30 hours or more per week. It was after that, on 11 February 201 1, that the Corporation determined Mr McIvor to have vocational independence in those three work types. 16] About a week short of two months later, on 5 April 2011 Mr Rao reported having seen Mr McIvor that day after he had undergone a second facet joint injection. Mr Rao was now sure that Mr McIvor's problems were related to the facet joint, particularly at the L4/5 level. He expressed the view that another surgical intervention would need to be considered: Perhaps to begin with removing the fixation that he had previously from the back at the L5/S1 level ... 17] At least in terms of what is in the bundle, the next report from Mr Rao is much more recent, being dated 26 March last year. It is, in effect, an ARTP. Speaking of the history Mr Rao now wrote: Grant ... underwent posterior and interbody fusion at L5/S1 in 2008. He lost his leg pain but unfortunately has persisted in having progressive back pain which was investigated extensively and also had a second opinion In essence it is proven that he may well have a possible non-union at the L5/SI level but more specifically he has also developed possible adjacent segment abnormality at L4/5. Both these levels have been investigated with discograms and MRI scan and certainly his pain levels are significant, about B-9/10 at the L4/5 level on discogram. He has been managed extensively with conservative treatment which has failed. (Emphasis added) [18] He shortly then continued: Trevor Fitzjohn in Wellington has performed discogram. This confirms that his 14/5 level is certainly a source of a lot of the pain which is typical with an annular tear and he rates his pain 7/10. MRI/bone scan 2012. [19] The procedure he proposed was an: Anterior lumbar discectomy with fusion two or more levels. [20] Amongst the further medical information provided (but which was not in the bundle of documents) were some other reports and letters from Mr Rao. These included one to Mr Mark Sherwood, orthopaedic surgeon, Wellington, dated 5 July 2011 (it should be remembered that the Corporation's decision is dated 11 February 2011) in which, seeking a second opinion, he says: This gentleman underwent a posterior interbody fusion at L5-S1 about three years ago and has never really improved. We have tried to get all sorts of modalities to help him, including multiple investigations and I am really at a loss to know what else I can offer this gent ... (Emphasis added) [21] There is then a 31 August 2012 letter to the GP in which Mr Rao says that Mr McIvor has had: A very satisfactory review for a second opinion in Wellington and his bone scan that was recommended confirms that he has no abnormal findings as such. ... I believe that the recommendation was to consider removal of the instrumentation which I have considered myself in the past and we know that a facet joint injection has given him a measure of relief in this area previously, although not consistently. I have discussed with Grant and his wife today the options available and I feel that in the first instance exploration of the fusion with a view to removing the fixation would be a very reasonable option at this stage. ... [22] At this point he proposed another MRI. That obviously followed, for on 9 October 2012 he wrote again to the GP, this time to say: His new MRI scan ... does throw up another problem which is that the disc tself looks abnormal. There is a bulge with an annular tear but the basic structure of it looks satisfactory. ... I will arrange to get his old MRI scan, compare that with the new ones and we will then consider whether a discogram is appropriate in the first instance prior to considering removal of his metalware ... (Emphasis added) [23] The separate bundle of correspondence also included reference to a recent approach to the Corporation for surgical funding which, so I was told at the hearing, had been approved. Evidence at appeal [24] I permitted Mr McIvor to give evidence at the hearing of the appeal, but that was confined to the issue of his computer skills. Mr McIvor told the Court that: Before his accident (when he was self employed as a painter/decorator) he handwrote quotes and his wife took responsibility for other administrative work - bills and so on - on a computer. Speaking of the computer course (one that had run for 3 weeks or so) he said: ... I didn't really learn anything because basically the stuff that they were showing us to do, not - it's hard to remember now, but it was stuff that wouldn't have fitted in with my painting business as it was. You know, like they wanted lists of stuff up for costings, all this type of thing. Well, it's not very hard to look at a house and know how many pails of paint it's going to use, so it was just way over the top ... Of the training he received (at a private home in Waipukurau and from a person whom he knew) he said : I used to go down there, I think it was twice a week for a few hours, play on the computer and she would show me a few things on the computer and that was it. ... He said that there was a laptop computer at his home that was used by his wife and his offspring. Insofar as it might be suggested that he used the internet at home, he said: ... Well, the kids would put it on if I wanted to look at Trade Me, or something like that ... Later, and in reference to the administration of his former painter/decorator business, he clarified the extent of his computer use saying that most of the accounts he sent out were handwritten (in an After stating that he had not (as was elsewhere asserted) been advised to go to the Eastern Institute of Technology to practise. invoice book that imprinted carbon copies) and that it was his wife who actually wrote the bills out. Asked what Microsoft Excel was he said: That's for looking, you can - well, it just brings up a programme, doesn't it, for what you want to do? I'm not sure ... I suppose it would be for printing stuff out, would it? I'm honestly - I've never really used them. Asked about Microsoft Word, what he knew about that he said: No, not really, I don't - is that something that you - I can remember her telling me something about that but I honestly can't remember. He then saying in reference to the lessons that: Well, I would just stay there, she would just turn it on, show me things for an hour or so, but, as I say, half the time I wasn't paying - I've got to sit in a chair. He accepted that (as was recorded in the bundle) he had been given a booklet which he thought was probably now up in a cupboard somewhere. Pressed about the point of the booklet being to assist him in gaining computer skills, and asked whether he just went and put it in a cupboard, he said: Oh, no, well I - the thing is that at that stage I thought, ok, I'm going to come right, I'm going to come right. So, to me it wasn't such a huge issue because I thought, right, I'll come right, and I'll be back to be able to do what I wanted to do ... my painting which I obviously know now is not possible ... Still on the topic of the booklet, he accepted that the tutor would have told him to use it to help him practise on the laptop at home. In response to an enquiry as to whether he had followed the advice of the tutor in this respect he said: Yeah, I would have done little bits and pieces but I honestly couldn't remember what they were now. He said that he did not use email at all, the family had an email address but he did not know what it was and that it was his wife who used the computer for email, his children being both away from home now. [25] Cross-examined by Ms Churstain about Microsoft Word, Excel, internet and email training - and asked whether he remembered going into Excel and Word - he responded: No, not - to be honest, no. I probably did but to be honest I just can't remember. I can remember, like the names, but - I can remember one was for like pricing a job, or pricing, but I don't honestly wouldn't know how to do it now, and I don't know what the other one is for. I think it may have been for, um, for sending out an account maybe, or something like that, but I honestly can't remember ... [26] I then took him back to what the tutor had apparently demonstrated to Mr McIvor - to what she might have had him 'have a go' at - and he said: Yeah, I think there was something to do with it, which that might have been the Excel, or whatever you called it, I'm not sure, it came up with like a ledger and you could move things round, and times things, and minus things ... my memory is not the flashest at all and this is - it hasn't been for the last two years since I was crook again, so they did say I would lose my short term memory. I can retain some things but some things I just can't anymore. [27] I then asked Mr McIvor about this matter of memory - about any problems on that account - and he said: I had an infection and they gave me a drug and I ended up in hospital because of it, all my skin fell off and I was allergic to it. It affected my blood and everything and then went through and it created a memory loss. I was in hospital for three or four days ... it would ... be ... five years ago I suppose, may be a little less. [28] This led me to ask Mr McIvor whether the tutor had ever commented on his ability to take things on board, to remember 'stuff" when he was having a lesson and replied 'no'. He then said that it had been necessary to go over things several times before he might possibly get the hang of them. [29] This led us to the matter of schooling of which Mr McIvor said: I left school when I was 15 ... about the end of the fourth form it would have been ... I got a job straight away. I was a painter then so I left. 30] He also told me that he had not undergone any kind of educational programme since leaving school and, when asked what subjects he had been doing in the fourth form, he first came up with PE. [31] In response to further questioning he said that the tutor had never asked him about his education, but he allowed in this respect that she was someone who already knew him. Memory issues [32] Subsequent to the hearing of the appeal, and in response to a minute then issued, a report from Dr Stephens, Mr McIvor's GP, dated 19 November 2013 was provided, and I will set it out in full: Mr McIvor has had a difficult course since his accident and injury on 6 July 2007. He has continuing problems following his back injury and initial surgery in May 2008. Grant has had to manage with significant co-morbidities and other situational factors. I also see the minute from His Honour Judge Joyce QC. I have reviewed the notes with Grant and obtained his consent to release information concerning his wider health issues. Grant has continuing atrial fibrillation. He became depressed, exacerbated after loss of ACC support. Following a vocational independence assessment in 2009 he received a letter identifying he was fit to work as 'corporate and general manager' (copy enclosed). This does not seem to fit the criterion of work matching skills'. Appealing the decision, Grant tried to return to work painting and decorating but found it unsustainable. Back pain, paroxysmal atrial fibrillation and a degree of depression persisted. Alcohol overuse became an issue at times. Other situational factors included a regional storm n early 2011 causing major property damage. He felt family livelihood and security were threatened. I have no note or memory of Grant suffering memory loss as a result of an allergic reaction to medication. He did develop a significant allergic rash following the introduction of Diltiazem in early August 2011 and this rash settled when the medication was withdrawn. Physical education. Grant suffered significant acute illness in November 2011 necessitating admission to hospital and a further significant illness in May 2012 necessitating further admission. In summary Grant McIvor suffered continuing chronic medical problems compounded by acute episodes two of which required admission to hospital. It seems it may have been difficult for him to engage in new skills training during this time. [33] As will be apparent from the above, there turns out to be no significant support available from the GP on the memory loss front and the matters of which the doctor latterly speaks are of a kind that arose after the decision finding him to have vocational independence had been made. [34] However the Court can certainly identify with the GPs commonsensical observation about Mr McIvor having the capacity to work as a 'corporate and general manager'. Had that been one of the vocations upheld it would have been impossible to count it other than absurd for a man of Mr McIvor's, as already set out by me, background Submissions each way [35] At the hearing itself Ms Williams, in presenting the case for Mr McIvor, emphasised such as that within the month or so preceding the decision of the Corporation Dr Prestage had reported that Mr Mclvor had pain all the time, this being present in the lower lumbar spine and made worse upon any extension of that. (36] That was why the doctor was of the view that Mr McIvor's work capacity was light level, as regards physical demands, only. Any job requiring him to sit for long periods of time, such as when driving, was inappropriate. [37] Of course he then went on to support, from a medical point of view, the job types of small business manager, stock clerk, and despatching and receiving clerk. [38] Ms Williams was critical of the fact that Dr Prestage's observations in respect of each job were precisely the same - the implication of his submissions was that these were both rote, rather than properly considered, observations. She proposed that Dr Prestage had here paid quite insufficient attention to the pain issue, the doctor had glossed over it she submitted. [39] She then turned to the occupational assessment and the obvious pertinence of computer and keyboard skills to the jobs of stock clerk and despatching and receiving clerk and, for that matter surely, small business manager, [40] Even given that 'on the job' training could be expected, her submission was that what had been pursued with Mr McIvor by way of computer training had surely been bound to be ineffective for a man of his background. [41] He had left school at 15 with precious little education and naught in mind but painting and had remained a painter and decorator until his accident. [42] He had run his business the 'old fashioned', let the eye take in and convey for practical judgment what is required, way and with his spouse largely attend to the paperwork. [43] Ms Churstain presented very comprehensive submissions for the Corporation at the original hearing which I have carefully considered when summarising the Corporation's position as being that: Mr McIvor had not provided any cogent and contemporaneous evidence to support his position that he was not vocationally independent as of February 2011. The vocational occupational and medical assessments had been undertaken in accordance with the Act by suitably qualified assessors. Dr Prestage had taken into consideration, amongst other things, Mr McIvor's functional limitations, his medical history, his present injury and non-injury related factors and the job description details. When undertaking the VIOA, Mr Roux considered the appellant's appropriate vocational skills, experience, education and marketability to prospective employers. When undertaking the VIMA Dr Prestage reviewed the full job type descriptions contained in the job detail sheets, together with a VIOA, in considering Mr McIvor's suitability. Mr McIvor had completed extensive rehabilitation and in particular had completed the rehabilitation set out in his agreed IRP; and Mr McIvor had the skills (transferable or otherwise) and experience to undertake the work types identified by the occupational assessor and medical assessor. The VIOA [44] This is a case where I consider the VIOA to warrant particular attention, that as now given. [45] The first thing to observe is that it is variously obvious that the assessor had the impression that Mr McIvor had successfully completed computer training during vocational rehabilitation. [46] Next I note that the description of the "stock clerk" work type is in terms: Counts incoming stock and reconciles it with requisitions; updates inventory and stock location records; establishes and co-ordinates the operating procedures for receiving, handling, storing and shipping goods. [47] I also note that in function terms: Employees frequently sit at computer workstations while completing the clerical tasks required. 48] Turning to the work type despatching and receiving clerk, the tasks description is: Identifies items and containers of incoming and outgoing shipments and verifies them against consignment records; ensures ongoing shipments are in good condition and meets specifications; arranges internal distribution of goods received; organises the despatch of goods with completed documentation; maintains prescribed records of goods received and despatched; examines shipping documents and verifies cargo to be released; records Customs clearance requirements and authorises collection of cargo; calculates storage and clearance charges and bills customers; receives details of outgoing cargo, and arranges booking of freight space and collection of goods from customers; provides information to customers on Custom tariffs, tariff classifications and concessions and methods of clearing goods. [49] Then, in general reference to functional activities, there is a reference to employees frequently sitting at computer stations while completing the clerical tasks required. [50] I cannot locate in the materials presented the descriptions of the work tasks for a "small business manager" but will take the following from the assessor's concerning observations of Mr McIvor in this respect: Grant worked in self-employment for 18 years and demonstrated communication, listening and organisational, planning and decision-making capabilities. He gained experience in marketing his business and pricing and quoting jobs for clients. In his role as painter/decorator, Grant addressed and resolved customer requests, networked with sub-contractors and instructed and trained people in painting skills. He planned daily, weekly and monthly jobs and demonstrated time management skills in working to deadlines. Grant also has computer skills. ... [51] It is certainly not part of the task of the Court to assume the role of vocational assessor but it does have an obligation to cast a considered eye over all of the reports proffered. [52] Having done that, and setting those against that of which the Court has had the benefit, namely Mr McIvor's account of his background, I must respectfully observe that I see little sign indeed that Mr McIvor had, over the years, collected the skills and gained the attributes that, so it was asserted, would transfer to the job types upheld. [53] When I then turn back and place against the background of what the Court knows of Mr McIvor, each of the upheld as suitable job descriptions, real world problems are apparent. [54] The reality is that Mr McIvor, an uneducated man relatively speaking can be taken to have made a reasonably remunerative for him and his family fist of being a painter and decorator for 30 years with the administrative support of his wife. [55] But it does not appear to have been the case that, as at February 2011, the obvious gaps in his skill set when it came to performing clerical or business work independently of spousal support, were filled, save in a mechanical thus ineffective way, by the rehabilitation provided by the Corporation. [56] I found no reason to doubt his evidence about the computer training. That evidence tends to demonstrate that it went ahead without (any preliminary) attention at all to his ability, in the first place, to grasp computer skill essentials. A story not infrequently told, at least in my experience, in this jurisdiction. [57] I accept that, just as practice supposedly makes perfect, so lack of that may make for the loss of what has, at best, been superficially acquired. But the short point is that there is no good and apparent reason to think that the training that Mr McIvor got comprised anything better than "going through the motions". [58] The questioning of him revealed in stark relief his naivety, even now, in relation to computer operation. And here I especially note that his answers betrayed no indication at all to me of any kind of studied attempt to display ignorance. I recognised him as 'saying it how he saw it'. 59] Standing back, then, and looking at the case both from the medical and occupational perspectives (but particularly in this case the latter) I am satisfied in terms of the evidence available to the Court that Mr McIvor has made an effective case for the finding that his identification as having vocational independence in the three job types referred to was simply not warranted. [60] In that state of affairs it is unnecessary to dwell on some fair points well made by Ms Williams concerning ongoing, at the time in question, pain. Result [61] That means that the review decision to the contrary was wrong. So it is quashed as then becomes the effective fate of the Corporation's own 11 February 201 1 decision. [62] The Corporation must now, after due inquiry, restore to Mr McIvor the entitlements he has been bereft of in the meantime. Costs [63] Mr McIvor is entitled to costs which I am wholly confident Ms Churstain and Ms Williams will be able to agree between them. Note [64] My impression is that Mr McIvor is most certainly not a man who has ever sought to avoid work that he could manage. I commend to the Corporation the idea of referring him to one of the recognised adult education entities with a view to him then undergoing sufficient education and training as is requisite to him taking a work place in the modern world. Literacy Aotearoa could well be a likely candidate in this respect. Rodwick ! Roderick Joyce , District Court Judge