Redmond v Allianz New Zealand Limited

IN THE DISTRICT COURT HELD AT CHRISTCHURCH WELLINGTON REGISTRY Decision No. 212/2004 AI 279/02 UNDER The Accident Insurance Act 1998 IN THE MATTER of an appeal of a review decision BETWEEN HENRY REDMOND Appellant AND ALLIANZ NEW ZEALAND LTD Respondent HEARD at CHRISTCHURCH 20 April 2004 DATE OF THIS DECISION: 29 July 2004 COUNSEL: Mr A Cadenhead for appellant Mr A Blair for respondent DECISION OF JUDGE P F BARBER The Issue [1] I am asked to decide whether the 18 December 2001 decision of the respondent that the appellant had a capacity for work was correct. Background [2] Until late 1999 the appellant had been a secondary school teacher of some 19 years experience and was working at Christchurch Boys’ High School. In the fourth term of 1999 he suffered problems with his voice and placed a claim for cover with the respondent. The injury for which cover was sought was diagnosed as “loss of voice resulting from chronic acute laryngitis/vocal dysphonia”. [3] Initially the respondent declined the appellant’s claim for cover, but this was later revised. Unfortunately, he has continued to have problems with his voice and has received treatment from various otolaryngologists and speech therapists. [4] In October 2001 the respondent requested the appellant to undergo a work capacity assessment. 2 [5] The vocational assessment was carried out by Mr S McCann who identified a number of employment options which he believed were suitable for the appellant. [6] The medical assessment was carried out by Dr C Kenny who indicated that the appellant had a capacity for work in the following occupations:  Foreign Student Liaison Officer;  Prison Programme Co-ordinator;  ESOL Tutor;  ERO Inspector;  Corporate Trainer;  TOPS Instructor;  Department of Education Administrator;  Polytechnic Tutor;  Correspondence School Co-ordinator. [7] As a result, the appellant’s weekly compensation was determined. He applied to review that decision and the matter proceeded to review. In a clear and comprehensive 4 June 2002 decision, the Reviewer (Mr Tim Cleary, Barrister of Wellington), upheld the respondent’s decision. [8] Subsequently, the following reports have been adduced to this Court by consent namely: from Vocation NZ dated 18 July 2003, Dr J R Thomson dated 1 April 2003, and Dr W Glass dated 20 February 2003. [9] The review hearing was two hours in duration. The appellant gave viva voce evidence; oral submissions were made by his counsel, and written and oral submissions were given for the respondent. [10] At its pages 3 and 4, the review decision summarises well the approach taken by the appellant and his counsel. The appellant put a variety of reasons; physical, motivational, training, qualifications, and economic as to why he believed he was not suited or capable of undertaking the various roles. Mr Cadenhead focussed on the medical assessment and submitted, with some emphasis, that Dr Kenny had not “examined” the appellant as required by the statute because Dr Kenny was not sufficiently qualified, being an Occupational Physician and not an Otyolaryngologist. He also submitted that no, or insufficient, reasons were given by Dr Kenny for his determination. [11] At its pages 4-8, the Review decision thoroughly addresses all the points raised. At pages 6 and 7, the Reviewer notes that the appellant’s objections were really just differences of opinion with assessors, rather than illustrating demonstrable flaws. The Reviewer also found (at page 7) as a matter of fact that, contrary to the position taken at review, the appellant had, on various occasions, accepted that he could make a return to teaching. At pages 4, 5 and 7 the Reviewer deals with Dr Kenny’s qualifications to be a Medical Assessor and the adequacy of his examination. The adequacy of Dr Kenny’s reasons are dealt with at pages 5, 6 and 8. The Reviewer found that Dr Kenny had matched his medical findings (i.e. the capability of the appellant working where his voice is used in a low to moderate volume not on a continuous/prolonged basis) to the differing levels of voice use indicated on the Occupational Assessment job sheets. 3 Reasons for Decision The Vocational Report [12] With regard to “Foreign Student Liaison Officer”, Vocation NZ in its report of 18 July 2003 states: “All the skills Henry has are related to curriculum teaching experience. Marketing overseas would require sustained periods of speaking.” Mr Cadenhead points out that, in terms of the computer skills required for the above position, Vocation NZ stated: “He can search for the information needed, but no skill in keyboarding, use of spreadsheet or database programme. He could not fulfil the job description of the NZSCO as developing programme and organising accommodation and other arrangements all require a high computer literacy.” [13] Mr Cadenhead also noted that the Medical Assessor is not provided with any hint in terms of the pressure to be applied to the appellant’s voice by this work, or the other various job options, as the standard Job Details Sheet makes no reference to whether a person speaks for any length of time or not. [14] Mr Blair submitted that the Vocation NZ report of July 2003 is severely flawed in the following respects: “  The authors are vocational consultants. Rather than confine themselves to an occupational assessment the authors stray in a number of places into commenting on medical matters (e.g. p9 ‘His lack of voice clarity and the difficulties he experiences in sustained use of his voice would preclude him from work as a teacher whether in a school, a polytech, a prison or other private training establishments.’  It is well established that assessors and commentators on those assessments should stick to their own areas of expertise (e.g. Gregory 287/01).  Where the databases the 2003 report uses do not match the 2001 vocational assessment the report simply substitutes its own view of what the occupation was/is or entailed/entails, e.g. corporate trainer becomes training and development officer, foreign student liaison officer requires sustained period of speaking, prison programme co-ordinator becomes synonymous with social worker, polytech tutor becomes synonymous with secondary school teacher.  Throughout the report it is noted that because of the length of time out of teaching, retraining in curriculum would be required. This was not the case in 2001 when the s.89 assessment was carried out.  Under ESOL tutor, it is reported that Mr Redmond whilst overseas met informally with people to practise English and did not teach or tutor. This is not the information Mr Redmond previously supplied (see CV prepared on information supplied by Mr Redmond, see Dr Monash report 8 September 2000, see employee Gradual Process Questionnaire (Redmond) 1 April 2000). 4  Correspondence School co-ordinator is not thought to be suitable because of ‘market availability’ for jobs.” It seems to me that the appellant is well equipped for the job option ‘Foreign Student Liaison Officer’. All Mr McCann’s job descriptions seem realistic to me; and the appellant’s list of transferable skills is most impressive and wide ranging in terms of the job options before me. Clearly, a pivotal point considered constantly by the assessors was the use of voice for each job option. Prison Programme Co-ordinator [15] Mr Cadenhead points out that the NSCO notation for this employment is synonymous with that of a social worker and that Vocation NZ indicate (at their page 4): “Social workers have a recognised tertiary qualification in social work and/or community counselling. Henry’s counselling skills extend to his secondary school base experience as a year level dean and a housemaster.” [16] Then Mr Cadenhead notes that s.4 of the Vocational Schedule provides as a rationale for prison programme co-ordinator: “Could utilise his many years of teaching”. Mr Cadenhead puts it that the appellant has been teaching secondary school children rather than prisoners, and that these two positions are simply not equivalent. Nevertheless, I see no reason to query the work capacity assessment on this job option. Of course, I take into account speaking requirements. ESOL [English Second Language] Tutor [17] Mr Cadenhead noted that: “Section 4 of the job details sheet as a rationale for ESOL tutor indicates: ‘Has ESL teaching experience and 20 years secondary school teaching experience.’ He puts it that as indicated by Vocation NZ, this rationale is founded on incorrect information. It is recorded by Vocation NZ at page 5 of their report: ‘The occupational assessment lists in section 1 work experience “ESL tutor one year, Tesco Japan and ESL tutor one year Saab Sweden.” Henry whilst he was playing rugby in Japan and Sweden met informally with people so that he could practise their conversational English. This usually occurred in cafes or private homes. We do not believe this constitutes two years experience as an ESL tutor.’ Additionally, Vocation NZ add: ‘He has been out of the teaching environment for some time and would need retraining in National Qualifications framework structures. He has problems with voice projection and sustained use of his voice and he would need retraining in computer skills.’ ” I prefer the formal work capacity assessments. It has not been shown that they are flawed. ERO Inspector [18] Section 4 of the occupational report as the rationale for ERO Inspector indicates: “Has many years teaching experience”. Mr Cadenhead submits that it is simply not a matter of becoming an ERO Inspector and that as Vocation NZ at page 5 of their report indicate: 5 “People currently working in these positions enter from a senior teaching position with a current background in educational management roles. Henry is completely unsuitable for this type of work, as he does not have the required level of management experience.” Again, I do not accept the submissions for the appellant and I prefer the results of the work capacity assessments. Corporate Trainer [19] The rationale in s.4 for Corporate Trainer is “Could utilise many years of teaching plus extensive sports coaching and adult education.” Vocation NZ at page 6 of their report indicate: “NZSCO calls this employment option a training and development officer. Our understanding of this type of work is a person who, by excellent communication skills, works to motivate others to change. This would generally occur over a period of one to two days and would involve the development officer presenting theory, facilitating discussion and feedback and encouraging a group to arrive at solutions to problems.” Again, I prefer the result of the W.C.A.P. TOPS Instructor [20] Section 4, insofar as rationale indicates: “Has many years of teaching experience.” Mr Cadenhead puts it that once again it appears that the vocational officer is simply using the years of teaching experience interchangeably with various forms of employment which involve disseminating information or teaching quite different subjects and subject persons than the appellant was involved in. He referred to Vocation NZ noting at page 7 of their report: “We consider this a highly demanding teaching situation, often working with individuals who are unmotivated and non-compliant. TOPPS instructors are offering second chance education in an alternative environment to secondary schools. Henry has no experience working in this type of environment. Sustained use of the voice would be required to teach and to manage student behaviour and Henry’s voice is unreliable.” Again, I prefer the result of the W.C.A.P. Department of Education Administrator [21] Mr Cadenhead put it that as indicated by Vocation NZ at page 7 of their report, the Department of Education does not exist in New Zealand and they presume the occupational assessor is referring to the Ministry of Education. Of course Vocation NZ go on to note that there are two occupational sectors within the Ministry of Education, namely, either an adviser (subject specific) or an administrator (general). Insofar as the appellant being able to carry out work as an adviser is concerned, they believe that his period away from teaching and the lack of previous responsibility for any subject area would make him unsuited for this type of work. Mr Cadenhead submits that additionally, in terms of work as an administrator, his lack of computer literacy makes him unsuitable. I do not accept that and prefer the outcome of the W.C.A.P. 6 Polytechnic Tutor [22] Mr Cadenhead refers to Vocation NZ indicating at page 8 of their report: “If Henry is unable to teach in a secondary school setting we cannot understand how he is able to teach on a polytech setting. As stated previously, Henry needs retraining in subject changes and national qualifications due to his prolonged absence from the classroom.” [23] There is a big difference between being a schoolteacher and a polytech tutor, including in terms of use of voice. I prefer the outcome of the W.C.A.P. Correspondence School Co-ordinator [24] Mr Cadenhead refers to Vocation NZ at page 9 of their report stating: “We gained additional information from the Correspondence School website. Jobs are mainly based in Wellington and are subject specific. We question the market availability for jobs and believe that this is not a realistic employment option. Use of Voice A Correspondence School teacher is still required to speak to students. Henry’s voice problems would affect his ability to do his job. Henry has been out of the teaching environment for some time and would need re-training in subject changes and national qualifications framework changes.” [25] Again, I disagree. [26] In general, Mr Cadenhead emphasised that the Job Details Sheets are the primary and paramount tool for the Medical Assessor in terms of drawing his opinion about suitability of job options, and yet the Job Details Sheets for Foreign Student Liaison Officer, Prison Programme Co-ordinator, ERO Inspector, Department of Education Administrator, and Correspondence School Co-ordinator make no reference to voice usage. Mr Cadenhead submits that as this is the exact disability on which incapacity is founded, the Medical Assessor was in no position to draw any conclusion from these Job Details Sheets, so that the vocational and medical assessments are flawed. I do not find them flawed. [27] Mr Cadenhead also referred to Dr Kenny’s express concerns with respect to the suitability of some of the employment options when he states: “Certainly, in my opinion, it is difficult to see that a teacher (even a senior teacher) could transfer immediately to work as a Department of Education Administrator or a Prison Programme Co-ordinator without some additional training”. In my view, there is no cause for concern. [28] In identifying suitable occupations, the vocational assessment sets out the appellant’s experience, training and transferable skills, and he obviously has many of the latter. It notes the appellant’s concerns that he would be better suited to teaching roles where he had a more compliant group than secondary school students as this would enable him to work without constantly raising his voice. [29] The said occupations identified are varied but all have an educational link from teaching to some degree, and different levels of talking would be required for each of 7 them as identified by the Occupational Assessor in the Job Details Sheets. The jobs are not of the same ilk, but all have an educational theme. I consider that the levels and amount of talking expected in these job options are within the appellant’s capacity and that his experience, training, and transferable skills strongly equip him for the said relevant job options. Certainly, it has not been shown that the vocational occupational assessment process is flawed in any way. The Medical Report [30] Mr Cadenhead submits that the medical assessment of Dr Kenny breaches s.100(1)(d) of the Accident Insurance Act 1998 which reads: “100 Report on medical assessment (1) The medical assessor must prepare a report on the medical assessment specifying— … (d) The assessor's opinion of the insured's capacity for work for each of the types of employment identified in the occupational assessor's report; and ” … . [31] Mr Cadenhead then referred to a number of cases of this Court as showing what is required to fulfil the requirement of s.100(1)(d) in terms of the written content of the medical report. In that respect he refers to Judge Beattie having stated in Bidois (No. 318/01): “Nowhere in his report does Dr Sprott identify the characteristics and tasks of each of the job options, as provided in the WCAB 6 forms provided by the Occupational Assessor, and then give reasons why the appellant or the identified physical limitations, can nevertheless be capable of working the requisite hours in that job”. He also refers to Judge Beattie reaffirming that view in Inwood (No. 43/02) when he stated: “Nowhere in Dr Marshall’s report does he refer to or consider the various physical requirements of the job options as were provided to him by the Occupational Assessor. Nowhere does he seek to put those physical requirements against the physical capabilities that he has identified as being present or absent from the appellant and this Court is simply not able to assess and weigh up his reasoning with that of Dr Burry and draw a conclusion as to which should be preferred”. [32] I agree with Mr Cadenhead that s.101(1)(d) is a mandatory provision within the work capacity code. It is not an evidentiary provision, but is a specific requirement of the Act. I also respectfully agree with the statement of Judge Cadenhead in Olsen (No. 231/03) that: “There is at least an evidential onus upon the respondent to show that the various prescribed statutory steps have been complied with before being entitled to the benefit of the medical assessment provided by the Medical 8 Assessor. Once the assessment has been made, the Medical Assessor is virtually functus officio”. [33] It is settled law that the provisions of the Act dealing with work capacity assessment must be complied with strictly and, particularly, the provisions of s.100(1)(d). Mr Cadenhead submits that they have not been complied with in this case because Dr Kenny does not consider the job schedules and, in particular, the description, environment and functions in his report and compare them with the appellant’s disabilities. Mr Cadenhead puts it that the closest Dr Kenny comes to that is at page 4 of his report when he states: “However, strictly from the point of view of his voice problem, accepting that there will be a stress contribution to this condition, and given the limitations recommended above, in my opinion Mr Redmond would be capable of undertaking the following job options for at least 35 hours per week”. Mr Cadenhead submits this provides little or no indication why the appellant is able to carry out the employment task given his physical limitations, and that Dr Kenny does not identify the characteristics and tasks of each of the job options. Accordingly, he submits that the medical assessment of Dr Kenny is procedurally flawed given the mandatory requirement of s.100(1)(d) of the Act. I disagree. Obviously Dr Kenny has focussed on the ‘voice problem’. Mr McCann had identified the characteristics and tasks of each of the job options. [34] Also, Mr Cadenhead refers to Dr Kenny indicating at page 4 of his report: “That is Mr Redmond is considered capable of undertaking a wide range of employment options where use of the voice is at low to moderate volume only, and not on a continuous/prolonged basis”. Mr Cadenhead asks how can Dr Kenny tell if the voice is to be used at low to moderate volume only? He notes that Dr Kenny is unable to use his own knowledge, and refers to Dr Kenny also stating: “Would also be capable of using equipment to amplify his voice when appropriate, such as in teaching or presenting situations, such projecting his voice at higher volume would not be necessary”. Mr Cadenhead submits that, by that statement, Dr Kenny is placing a gloss or fetter on matters and that the appellant must be able to operate in all situations of the jobs described, and often there will not be amplification equipment available. I consider that Dr Kenny was merely making a sensible observation about voice amplification equipment. There is no gloss raised. In giving his medical assessment Dr Kenny has used not only his medical skills, but also his common sense. I agree. [35] A further report (dated 1 April 2003) was obtained from Mr C J R Thomson who is a specialist Otolaryngologist. In the report, inter alia, Dr Thomson notes: “I note that surprisingly Henry has been recommended for a number of positions which involve teaching or training. This is despite the fact he still has quite severe dysphonia and despite previous specialist Otolaryngology opinions by myself and Mr Stephenson he will struggle to hold down any position where regular demands are placed on his voice, and particularly any teaching or training position. His voice remains very husky and he still has quite 9 unpredictable loss of volume and control of pitch which in my opinion would make it most difficult to hold the position as recommended by Stu McCann & Associates. The recommended positions appear wholly inappropriate for Mr Redmond and I am at a loss to understand why a series of jobs that are highly likely to exacerbate his dysophonia have been suggested as appropriate alternative work positions. It is my opinion that Mr Redmond is incapable of taking on any employment positions which involve more than just occasional speech as this will no doubt cause further deterioration of his dysphonia and is not an appropriate long term answer for Mr Redmond’s future career prospects.” [36] Mr Cadenhead submits that given the unusual nature of Mr Redmond’s medical problem, significant weight should attach to this report. However, Dr Thomson is merely expressing his opinion. No flaws have been shown in the assessment process. [37] At page 5 of his decision, the Reviewer drew attention to the fact that the Job Details Sheets had little comment in terms of levels of voice versus voice work. He noted “However Stu McCann made a special note where options required different levels of speech, implying that for the other options speech or voice levels were not as demanding on the voice.” Mr Cadenhead submits that the Reviewer is not entitled to make that assumption as the work capacity test has serious implications for a claimant; what appears on the Job Details Sheet can make the difference of an injured person being on a Sickness Benefit as opposed to weekly compensation; and assumptions should not be made. Accordingly, Mr Cadenhead submits for the appellant that both the vocational and medical assessments are flawed to the extent that the respondent’s decision of 18 December 2001 should be set aside, and that this is particularly so in view of the rather unusual nature of the voice injury suffered by the appellant. [38] As already indicated, in this appeal the appellant has adduced not only the 1 April 2003 report of Mr Thomson, but also reports prepared in 2003 from Dr Glass and Vocation NZ, and he uses these reports to challenge the reports of the assessors. However, Dr Kenny’s medical assessment is thorough. Dr Kenny is a Consultant Occupational Physician and he has clearly reviewed all the documents then available to him as well as the medical evidence and, of course, noted that the ongoing problem for the appellant is dysphonia. On that basis Dr Kenny has examined the jobs identified from the occupational assessment and found (his page 4) “ … Mr Redmond is considered capable of undertaking a wide range of employment options where use of his voice is at low to moderate volume only, and not on a continuous/prolonged basis.” It seems to me that Dr Kenny has taken into account the sensibly understood voice capabilities required for each job option. He accepts that secondary school teaching is medically unsuitable for the appellant, but finds that the other job options are within the appellant’s capacity. [39] It is clear from the case law that where assessments are carried out by duly qualified and appointed assessors the insurer must accept them unless they are shown to be materially flawed. This has been stated in numerous decisions including Thomas v ARCIC DC 43/00, and Kirkham DC 47/00. 10 [40] In making his medical assessment based on the job descriptions, Dr Kenny took into account that the appellant has restrictions on his capacity to work. It is clear that Dr Kenny’s assessment is also based on a consideration of the overall evidence, including numerous medical reports and letters, and the identification of the appellant’s persisting dysphonia as the problem to be considered on assessment of capacity for work. I consider that Dr Kenny’s conclusions are consistent with the weight of medical evidence available. His report was sufficiently comprehensive and reasoned. [41] It seems to me that the respondent carried out appropriately timed and proper work capacity assessment procedures pursuant to the statutory requirements. A duly qualified and appointed Occupational Assessor reported under those provisions and identified suitable types of employment for the appellant, and those types of jobs were based on the appellant’s training, experience and transferable skills. Then a properly qualified and appointed Medical Assessor, Dr Kenny, an Occupational Physician, considered that occupational report and concluded that the tasks described in the identified occupations were within the capacity of the appellant to perform for 35 hours or more per week. [42] Neither the occupational nor medical assessment of the appellant’s capacity to work in the occupations identified have been shown to be flawed. In the absence of any demonstrable flaws in those reports on the appellant’s capacity to work, or of defective procedure of some type, those assessments must be accepted. [43] I consider that the Reviewer’s decision was comprehensive and correct. Accordingly, this appeal is hereby dismissed. _____________________________ P F Barber District Court Judge Wellington ai279-02.doc(aw)