Hood v Accident Compensation Corporation

IN THE DISTRICT COURT Decision No:22( /2009 HELD AT AUCKLAND IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN HEATHER HOOD (Al 195/07) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at AUCKLAND on 28 September 2009 APPEARANCES Mr A Cadenhead, Counsel for Appellant. Mr D Tui, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 24 October 2006, whereby it determined that the appellant had attained Vocational Independence within the meaning of the Act in ten work-types. [2] Mr Cadenhead, for the appellant, has raised two grounds of appeal, the first being the contention that the medical assessment of Dr Marshall cannot be sustained in that it had no regard for the chronic regional pain syndrome which the appellant developed from her right elbow injury. The second ground relates to the various work-types and the various occupational and medical aspects of those work- types, which counsel contends have not been considered in the light of the appellant's physical limitations and in some cases her non-suitability from an occupational perspective. 195.07 (pg) 2 [3] The background facts relevant to the issue in this appeal may be stated as follows: On 24 July 2003 the appellant, then aged 21 years, was employed as a dairy farm worker and suffered an injury to her right elbow when she was kicked by a cow in the course of milking. There seems to be some confusion over the exact nature of the njury, it being described as right biceps tendinitis and brachioradialis muscle injury. Although the appellant attempted to continue with her work as a dairy farm worker, pain and movement restrictions in her right arm and elbow prevented her doing so and she was certified unfit for work from 7 August 2003. She began to receive weekly compensation. The appellant's right elbow required treatment and she received a series of cortisone injections which only relieved the pain for short periods of time. . A number of medical assessments have been carried out on the appellant's injury. On 16 February 2006 the appellant underwent right elbow arthroscopy, capitellar chondroplasty and decompression of the posterior interosseus nerve. The surgery was carried out by Mr lan Penny, Orthopaedic Surgeon. . In September 2006 the respondent determined to commence Vocational Independence Assessment, and a Vocational Independence Occupational Assessment was carried out on 14 September 2006. That assessment identified 13 work-types for which the assessor determined the appellant was suited by reason of her education, experience and transferable skills. . A Vocational Independence Medical Assessment was carried out on 16 October 2006 by Dr Alec Marshall. Dr Marshall had earlier carried out an Initial Medical Assessment in December 2003. 3 In his October 2006 assessment Dr Marshall reviewed the appellant's medical history following the suffering of her injury and he then identified ten of the thirteen work-types as being medically suitable for the appellant to undertake on a full-time basis. Those ten work-types were as follows: Information Clerk and Other Receptionist. . Graphic Designer. Animal Welfare Worker. Sports Trainer or Coach. Veterinary Assistant . . . . Travel Attendant. Waiter. Bartender. Sales Assistant. . Following Dr Marshall's report the respondent issued its decision on 24 October 2006 determining that the appellant had attained Vocational Independence in those ten work-types. The appellant sought a review of that decision and for the purposes of that review she obtained a report from Dr Christopher Strack, Specialist Occupational Physician. Dr Strack examined the appellant on 20 February 2007 and then provided a 14-page report. . The conclusion which Dr Strack came to was that the appellant was not capable of undertaking full-time work as a consequence of her chronic regional pain syndrome. A response from Dr Marshall to Dr Strack's report was also obtained for the purposes of the Review Hearing. A Review hearing took place on 20 April 2007 at which Dr Strack's report and Dr Marshall's response were introduced. The appellant represented herself at that Review hearing. In a decision dated 8 May 2007 the Reviewer, Ms Vicki Thomson, found that Dr Marshall's assessment in October 2006 was not flawed and that there was no evidence of the appellant 4 suffering any chronic pain condition at the time of that assessment. The Reviewer determined that any chronic pain situation had arisen subsequently and could be considered deterioration. Whilst confirming the correctness of the respondent's primary decision of 24 October 2006, the Reviewer then went on to state as follows: "In the light of Dr Strack's findings in February 2007, Ms Hood may wish to seek a reassessment if she believes her vocational independence has deteriorated since 24. October 2006. Any new decision by ACC would carry its own review rights." For the purposes of the appeal to this Court further comment from both Dr Marshall and Dr Strack has been introduced. [4] Whilst the appellant has been examined and assessed, in the wider sense of that word, by a number of specialists, some of these were before the appellant underwent her operation with Mr Penny in 2006, and it is really the assessment of her physical condition post-surgery which is relevant to the issue in this appeal. [5] Having said that, it is worthy of note that when Dr Marshall first saw and examined the appellant in December 2003, he did note, inter alia, as follows: "I think it likely that Heather has a brachioradialis tendonitis. It is frustrating that she has on-going symptoms from this after this time. She does not have the creeping spread of symptoms that one would tend to associate with a chronic pain disorder. Having had two cortisone injections I would not be suggesting more now. I think the sensible course is for her simply to access another form of employment that does not heavily put upon her right elbow and hopefully the problem will settle over a longer period of time. The use of a neoprene sheaf may give her some assistance with it in terms of pain reduction and a feeling of support." [6] As earlier noted, Mr Penny arthroscoped the appellant's right elbow in February 2006, and following that surgery he referred the appellant to a course of physiotherapy. [7] In a report to the appellant's case manager of 31 May 2006, Mr Penny stated, inter alia, as follows: "You are aware of course, that I performed surgery on the 16" February 2006 being a right elbow arthroscopy, capitellar chondroplasty and decompression of the posterior interosseus nerve. There were several tight bands across the nerve but no obvious external pathology in terms of other compressive lesions. 5 I referred her to physiotherapy when I saw her on the 20" March 2006 because she was a bit reluctant to get the elbow moving. When I last saw her on the 1st May 2006, range of motion had improved significantly and she only had a 50 fixed flexion deformity. She described a marked improvement in her pain level compared to her pre-surgery state. I don't recall requesting more physiotherapy to "free up the nerve" but a little bit of supervision of an exercise programme for another few weeks may not be a bad idea for Heather." [8] At the hearing of this appeal, counsel for the respondent introduced a report that the respondent had obtained in 2005 from Mr Hugh Stevens, Consultant Orthopaedic Surgeon, whose opinion had been sought when Mr Penny had sought approval from the respondent for the proposed arthroscopy surgery. Mr Stevens' opinion was sought principally to confirm that the proposed surgery was to treat the covered injury. [9] Mr Stevens examined and interviewed the appellant for the purposes of his report and it can be noted that whilst the appellant was suffering from elbow pain at the time, and this was noted, there was no suggestion that the appellant was suffering from any chronic pain syndrome and such a condition is not mentioned by Mr Stevens. Mr Stevens concluded his report by stating as follows: I would accept the recommendation of Mr lan Penny, although noting his reticence with regard to causation, for right elbow arthroscopy, debridement of any irregular area on capitellum or elsewhere and posterior interosseous nerve exploration and decompression on the basis of 'everything to gain and hopefully nothing to lose.' " [10] As earlier noted, Dr Marshall carried out his Vocational Independence Medical Assessment on 16 October 2006, and he had reference to his own earlier report, together with a report from Mr Penny and also the medical notes from the appellant's GP. [11] Dr Marshall noted the appellant's present condition as follows: Heather indicates she still gets some soreness of the posterior aspect of her right elbow but not anteriorly where the pain used to mainly affect her. She has noted that things have improved. She gets numbness though of the dorsum of her right thumb and up the anterolateral aspect of her forearm. She notes she can still be quite weak in lifting etc. with the right arm. She has noted that as she has increased her work hours the right elbow does sometimes get tight, this can result in her neck becoming tight and developing headaches sometimes. She will take nurofen or panadol when she gets a headache. At home she cannot start her lawnmower so doesn't mow her own lawns. She does manage her other household duties well though. 6 She does find that the dogs can pull on the lead and this can hurt a bit but she still walks the dogs. She has found horse riding is still a problem for her in her use of the right arm." [12] Dr Marshall then identified various functional limitations which the appellant said she had in relation to various movements that might be associated with the various functional requirements in the workplace, the two main ones being limitations with lifting and repetitive arm movements. [13] On the issue of pain, Dr Marshall noted the situation as follows: "Heather describes an aching soreness that can still affect the posterior aspect of the right elbow. The numbness in the anterolateral forearm and dorsal thumb can irritate sometimes." 14] After noting and accepting the appellant's inability for heavy lifting, he then went on to note that the appellant was not limited in the use of her left arm and that she could use the right arm reasonably in most actions, which would include some degree of heavy lifting. [15] Dr Marshall then went through each of the work-types individually and noted her ability to carry out the work-types where heavy work was not required and where a common theme stated was "pain would not be engendered by the performance of the work and would not prevent the performance of it." [16] The bottom line of Dr Marshall's assessment was that issues of pain or heavy lifting would not prevent the appellant from being able to undertake the physical requirements of the ten work-types which he approved. [17] Dr Strack saw and examined the appellant on 20 February 2007, that is, some four months after she had been seen and assessed by Dr Marshall. Dr Strack commented on matters of pain, as being experienced by the appellant, as follows: 'Ms Hood experiences pain over the anterior lateral aspect of the right proximal forearm. The pain is not present all the time but she gets it with lifting items. When holding items with any force or lifting items such as the hot water kettle, she experiences what she describes as an intense pain (rated 6-7 out of 10). She cannot lift the hot water kettle at this stage due to pain and reduced strength as a result of the pain. After attempting such an activity the right forearm will remain very tired for some time. Ms Hood notes that she experiences problems with the right forearm every day. She can clean her house but experiences pain after it. Vacuuming exacerbates the symptoms. Ms Hood's right forearm pain is better with rest or if not doing heavy work. 7 Ms Hood has increased her hours up to 25 hours a week on some weeks. When she does this she experiences tiredness in the right forearm and "shakes" in the right forearm as well as significant tiredness in the right thumb region. Once she gets these symptoms they may last two or three days. She still experiences pain over the back of the right elbow joint. This is immediately behind the olecranon process. This is primarily experienced with lifting or pulling. She finds handling of animals difficult and cannot start her awnmower. This pain would be rated about 6 out of 10, it was only present for short periods of time. It is worse with activity and resolves once she ceases a provocative activity." After conducting an examination, Dr Strack noted as follows: "Perhaps the most noticeable finding at the time of examination was that of significant widespread fibromyalgia type tender points. 14 out of a possible 18 fibromyalgiae tender points were identified. In addition, there was tenderness over the first web space of both hands and over the right medial epicondyler region. There was also interscapular tenderness. She had significant tenderness over the anterior lateral aspect of the right proximal forearm, as well as some tenderness over the left acromioclavicular joint. A well-healed surgical scar was noted over the anterior aspect of the right elbow." He then gave his opinion as follows: Currently Ms Hood is experiencing significant right upper limb pain with quite widespread tenderness and significant problems with headaches. While there is a previous history of injury to her neck as a child, she has been able to cope with her neck pain up until recently. I believe that the significant problems she is having with headaches, as well as her ongoing right upper limb pain symptoms, particularly those experienced with relatively light activities such as using a computer, are likely to be largely as a result of the subsequent development of a chronic regional pain syndrome. I believe that this has been triggered by her right elbow problems. Subsequent surgery may also have contributed to the development of this problem.' . . . Ms Hood has been attempting to return to work as a graphic artist but has not ble to increase her hours to full time hours. I believe this is largely due to the significant headaches she has been experiencing, as well as right forearm fatigue, "shakes", and pain. I believe these symptoms are probably more likely to be related to the development of a chronic pain syndrome than the specific musculoskeletal pathologies identified in her right elbow. I base this comment fact that both her right forearm/elbow pain and symptoms, as well as her headaches, appear to occur in conjunction with each other and the general history of worsening of symptoms over recent times." [18] Dr Strack then went through each of the work-types and gave his opinion as to why he considered that she was not capable of undertaking that work-type, either at all or on a full-time basis, at present. He concluded his advice by stating as follows: "Unfortunately, given her current symptoms, particularly with the development of a chronic regional pain syndrome, I do not believe that Ms Hood is currently 8 capable of undertaking full-time work. As discussed above it is difficult to give a clear objective and quantifiable set of limitations in relation to a patient with a chronic regional pain syndrome. This is also further complicated by the fact that the actual diagnosis in relation to the cause of her right elbow symptoms has been somewhat difficult to establish. Although there have been areas of pathology identified at arthroscopy of the right elbow, the extent to which these explain all her symptoms is, in my opinion, uncertain.' [19] As earlier noted, Dr Strack's report was referred to Dr Marshall who provided a short letter of comment dated 4 April 2007. He commented as follows: 'The current position presented by Ms Hood to Dr Strack seems to contain more pain related to herself generally than when she presented to myself. She appears to have had more tenderness present when seen by Or Strack than when she presented to myself. Your main question is whether, having read Dr Strack's report, my opinion is altered from the expression of the VIMA of October 2006. Dr Strack's report does not alter my opinions as expressed in the VIMA dated 16/10/06. The conclusion on the areas of work suitable for Ms Hood to physically and medically sustain 35 hours of work per week st [20] The response from Dr Marshall was referred to Dr Strack for his opinion and a comment which has relevance is his statement as follows: 1, like Dr Marshall, am struck by the fact that Ms Hood's symptom complex and clinical findings at the time that I saw her on the 20" of February 2007, were quite different to those identified by Dr Marshall at the time that he did her Vocational Independent - Medical Assessment on the 16" October 2006. This, in my opinion, is at least suggestive that there may have been a deterioration in Ms Hood's case which could require further review." After making comment on the way in which chronic pain can manifest itself, Dr Strack concluded his response by stating as follows: "Whatever the situation, however, it appears that Ms Hood's pain symptomatology had deteriorated by the time that I saw her in February 2007, when compared with when she was reviewed for her VIMA on the 16" of October 2006. Dr Marshall comments on this in his letter of 4 April 2007. If as been a significant deterioration in a patient's condition since they were last reviewed, it might be appropriate to review them again." [21] The final word comes from Dr Marshall in a letter of 15 July 2009 to the respondent's counsel, where he had been asked to comment on Dr Strack's report of 2 July 2009. Dr Marshall was asked whether it was possible that the appellant had chronic pain or a pain syndrome at the time of the assessment of October 2006. His response to that question was as follows: "The findings when Ms Hood was assessed by myself in October 2006 were not substantial. They were not substantial enough to postulate chronic pain syndrome, and would be quite readily explained by having had surgery in the area and in particular the posterior interosseous nerve decompression, with potentially some scar tissue giving a few problems. Reading back through the report prepared by myself, no I don't think she had a pain syndrome or indeed findings that could be defined as being a pain syndrome at the time that she was seen. Of course, she did have some element of chronic pain, but as noted above I would place it in the area of post surgical pain, not in the area of a pain syndrome. The pain that she was experiencing was of course taken into account in assessing the job areas and so its presence was considered in assessing Ms Hood's vocational independence at that time.' [22] Mr Cadenhead submitted that the comments which Dr Strack made about chronic pain, and of the fact that any patient with pain that has been experienced for three months or over is by definition experiencing chronic pain, meant that the appellant was in fact suffering from chronic pain at the time she was assessed by Dr Marshall, but that he has not taken proper account of it when making his assessment. On that basis counsel submitted that Dr Marshall's assessment cannot be sustained. [23] Mr Cadenhead further submitted that Dr Strack's assessment of the appellant's abilities in relation to the various work types took proper account of the appellant's chronic regional pain syndrome, something which Dr Marshall's had not, and therefore again, on a case by case basis, the determination of Vocational Independence cannot be sustained. [24] Mr Tui, for the respondent, submitted that Dr Strack does not undermine Dr Marshall's assessment as those two medical specialists have given an assessment at different points of time and where the appellant's condition has been shown to be different. Counsel referred to the fact that Dr Marshall was clear that the appellant gave a different presentation to him than she did to Dr Strack [25] Counsel referred to the fact that no earlier reports had referred to any diagnosis of chronic regional pain syndrome. He referred to Dr Marshall having specifically investigated this aspect when he first examined the appellant in 2003. Finally, counsel submitted that even if some employment tasks were to be shown to be beyond the appellant's capabilities, not all of the work-types were in that category, and the sedentary work-types would still remain. DECISION [26] I have carefully considered the reports of Dr Marshall and Dr Strack and I find that they are respectively setting out the medical state of affairs pertaining to the 10 appellant as of the respective dates when they saw and examined her. Those respective dates being some four months apart. [27] One of the factors referred to by Dr Strack was the increasing of her work hours which had resulted in her experiencing fatigue and pain, and as he noted, there was a general history of a worsening of symptoms over recent times. [28] Dr Strack alludes to the fact that the appellant's symptomatology has deteriorated since the medical assessment in October 2006, and this observation has also been made by Dr Marshall. It was his view that the appellant was not demonstrating the symptoms of a chronic pain syndrome at the time she was seen by him. [29] Having regard to the concession made by Dr Strack that the appellant's symptomatology has deteriorated since the time she was assessed, I find that the assessment made by Dr Marshall cannot be said to be flawed. There have been a number of decisions of this Court which have identified that the assessment for Vocational Independence is an assessment made in a snapshot of time and that from a legal perspective the claimant needs to identify that as at that snapshot of time the medical position which pertained was in fact different from that which was taken to be the case by the assessor. [30] The Act takes cognizance of this snapshot in time principle by specifically allowing for a claimant to seek a reassessment if there are reasonable grounds for believing that a claimant's vocational independence may have deteriorated due to the injuries that were assessed in the previous Vocational Independence Assessment. [31] In the case of this appellant, I am satisfied that the evidence does point to a deterioration, that deterioration being caused by the onset of a chronic regional pain syndrome, which itself is attributable to the covered personal injury to her elbow, and the reports of Dr Strack are quite clear on that point. [32] Furthermore, the opinion of Dr Strack as to the appellant's ability to carry out the requirements of the work-types, consequent upon that chronic pain syndrome, has also been outlined and therefore it must be the case that reasonable grounds must exist for that deterioration to have affected the concept of the appellant's vocational independence. [33] I do not propose to go through the various work-types one by one to identify the various comments made either by Dr Marshall supporting his opinion that they 11 were suitable, or Dr Strack's opinion contending that they were not, by reason of the fact that those two medical specialists are in fact referring to the appellant's medical condition at two different points of time, and where that medical condition can be shown to be different and to have deteriorated by the time of the later assessment by Dr Strack. [34] Accordingly then, I find as a matter of fact and law, that the appellant did display sufficient abilities to carry out the various work-types identified to the extent that she was identified as being vocationally independent, and the respondent's decision that was made was the correct decision for the circumstances which pertained at that particular time. [35] For this reason the appeal must be dismissed, but I say further that by reason of the deterioration in the appellant's medical condition subsequent to that decision, being a deterioration in relation to her covered injury, the question of the appellant's vocational independence ongoing should be reassessed in the manner provided for in the Act. DATED this 14 day of December 2009 seethe M J Beattie District Court Judge