Somlay v Accident Compensation Corporation

IN THE DISTRICT COURT AT CHRISTCHURCH WELLINGTON REGISTRY [2010] NZACC 224 Al 334/07 and 335/07 UNDER The Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to s. 149 of the Act BETWEEN JAMES ZOLTAN SOMLAY Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at CHRISTCHURCH on 5 July 2010 DATE OF THIS DECISION 1oth December 2010 COUNSEL Ms P K Tucker for appellant Mr H A Evans for ACC RESERVED (INTERIM) DECISION OF JUDGE P F BARBER The Issue [1] The issue in Appeal Al 334/07 is whether ACC was correct with its 29 September 2003 decision that the appellant's vocational independence had not deteriorated. [2] The issue in Appeal Al 335/07 relates to ACC's 23 August 2005 decision also concluding that the appellant's vocational independence had not deteriorated. The appellant has challenged Dr Turner's diagnosis and submits that ACC should issue a fresh decision. [3] Section 109 of the Accident Compensation Act 2001 ("the Act") provides for the situation of vocational independence deteriorating. Background [4] The appellant suffered an initial injury to his right wrist in 1987 while he was employed by Firestone Tyre & Rubber Company as a machine operator. He was 2 made redundant from Firestone in May of 1997. He subsequently obtained employment as an aircraft cleaner with Ansett Airlines. ACC made up the difference between his wages from Ansett to the level that he had previously received at Firestone. (5] In April 2000 ACC referred the appellant for a Work Capacity Assessment. Five job options were identified by the occupational assessor. A medical assessment was conducted by Dr Turner who ruled out four of the five occupations, but considered that the fifth occupation, of Cleaner, would be sustainable. [6] ACC concluded that the appellant had a capacity for work. This decision was challenged and was upheld at Review and then, subsequently, by this Court in Decision No. 219/01. [7] In May 2003 the appellant provided ACC with a medical certificate from his General Practitioner, Dr Law, that the appellant's condition had deteriorated. ACC applied s. 109(2) of the 2001 Act and referred the appellant for a Vocational Independence Assessment. The occupational assessor identified ten work types as suitable for the appellant. Dr Turner - Vocational Independence Medical Assessment - 25 August 2003 8] By a 25 August 2003 report, Dr Turner conducted a Vocational Independence Medical Assessment. He concluded that the appellant was "managing quite well" as a machine operator working for 40 hours a week. He concluded that the appellant was fit to return to his usual role as a cable-maker and that his symptoms had stabilised following some rest and treatment. Dr Turner recorded a diagnosis of chronic regional pain syndrome affecting the appellant's right arm. He regarded this as a "chronic incurable medical condition". He then concluded that the appellant was capable of undertaking five of the ten work types which the occupational assessor had identified. On page 1 of his report, Dr Turner recorded: "I saw the appellant on 18.8.03 at your request in Christchurch in order to provide an opinion regarding work capacity for duties specified by the Occupational Assessor, the appellant having completed the Individual Rehabilitation Programme (IRP)." [9] And on page 2 under the heading "History of Present Condition" he stated: "He currently describes the most significant pain as being in the right arm, over the wrists and extensor forearm/elbow. There is some stiffness in his fingers in the morning which he puts down to arthritis. Recently he had nerve conduction studies and an MRI scan which were normal. Physical Findings "On examination he presented as a 45 year old man with a height of 182 cm and a weight of 86 kg. As previously, inspection of his neck, shoulders and upper limbs revealed that there was no anatomical asymmetry but he did have an itchy rash over his lower back. He had been assessed by a dermatologist for this, blood tests and skin scrapings have been undertaken; these were normal. He was prescribed 3 steroid tablets, which tends to clear the rash but he has been advised not to take this medication on a long-term basis due to the potential side effects. Palpation of his upper limbs as previously revealed essentially normal findings on the left, on the right he manifested trigger point pathology in the extensor muscle mass of his forearm and about the right elbow, particularly the common extensor origin, there were trigger points in the anterior right should and over the posterior should and shoulder blade muscles, particularly the trapezii. There was no evidence of any tendonitis or tenosynovitis in the right wrist or forearm tendons. Range of motion testing of his neck revealed it to be stiff with end range restriction of rotation, extension and side bending. In the shoulder he had end range restriction of abduction, forward elevation and internal rotation. The shoulders are described as generally stiff. The elbows and wrists moved normally. Lumbar spine mobility was satisfactory but clearly there was restriction of flexion due to tight hamstrings. Neurological examination focusing on the upper limbs revealed normal deep tendon reflexes and coordination. There was no evidence of muscle wasting or fascicularion. Pin prick sensation was diminished in the right arm as far as the elbow with normal findings on the left. Carpal tunnel compression tests and Phalens test were normal but did produce a heavy sensation in the right wrist and forearm. Power testing was within normal limits. His grip strengths using a spyhmomanometer cuff inflated to 30 mmHg gave a recording of 200 mmHg on the right her dominant hand, compared with the left at 250 mmJg of mercury. ... Investigations "An MRI scan dated 01/07/03 noted that there was no significant disc abnormality identified, there was no evidence of neural compromise, foraminal or central canal stenosis. No cause for the symptoms was able to be identified. A nerve conduction study dated 23/07/03 showed no electrophysiological evidence of the median nerve. As a consequence of a recent assessment with Dr J Borowczyk these tests were ordered, Dr Borowczyk taking the view that he had a chronic, ongoing regional pain syndrome but required the tests to exclude more significant pathology. ..." Diagnosis and Discussion 'I agree with Dr Borowczyk that the appellant suffers from a chronic regional pain syndrome affecting his right arm. Significant pathology has been excluded by way of his normal nerve conduction studies and MRI cervical spine scan. His pain syndrome can be regarded as a chronic incurable medical condition. Clearly he is managing reasonably satisfactorily using a pain management approach. The recent flare-up no doubt arose as a consequence of exacerbation of his pain syndrome. This has now settled with rest and treatment and he is fit to return to his usual job as a cable maker. 4 In conclusion reference to the job options previously listed I would categorise his present capacity as follows: A. Those jobs for which he would be capable of undertaking for 30 and 35 hours per week are: . Machine tool operator. This is the job that the appellant is currently doing. Comparing his current job with the work detail sheet indicates that heavy lifting, pulling and carrying is intermittent, repetitive movements are common and hand tool usage on the other hand is intermittent as opposed to common, there is stretching up and across and twisting of the body and neck when moving heavy drums. Walking on the other hand is common, sitting and standing are intermittent. The appellant felt that he was capable of undertaking all the work activities involved in machine tool operation. Caretaker and cleaner. This job has a similar functional profile with intermittent heavy lifting, pulling and carrying, common hand tool usage. Repetitive movements, stretching up and across, twisting of the body and neck are also intermittent. The appellant did not believe there would be sufficient money in this job to warrant a change to this type of job. Factory/process worker. This has a similar profile. There is no heavy lifting, pulling and carrying; repetitive movements are common as is hand tool usage, intermittent stretching up and across, occasional twisting of the body and neck. He saw himself as being able to do this type of work. Car, taxi and light van driver. Again this suits his functional profile with intermittent heavy lifting, intermittent repetitive movements, stretching up and across, twisting of the body or neck. Clearly driving is common but within his capability. He agreed that he could undertake this work. Spinning and winding machiner operator. The appellant indicated that he would be keen to return to Brintons where he worked as a senior operator. This job is within his musculoskeletal capabilities in terms of the heavy lifting, repetitive and use of hand tool components. There is intermittent stretching up and across, twisting of the body and neck, which he could manage." [10] Dr Turner ruled out the jobs of metal and plastic rubber products assembler, upholsterer and related worker, tyre production machine operator, other rubber and plastic products machine operator, and wood and related material products assembler. He concluded by noting: "There are no outstanding injury related medical treatments that would cure his pain condition." Dr Turner - Occupational Physician - Report of 8 September 2003 [11] In this report Dr Turner noted that the appellant has physical restrictions "that relate to his pain syndrome. This is abnormal pain and otherwise normal, but 5 deconditioned, tissue. These restrictions can therefore be regarded as functional rather than structural since the pain that he feels is not induced by an underlying physical injury to the tissues". Dr Turner then listed a number of "modulating factors" including an ability to self manage the pain, and a willingness to remain active. Dr Turner reaffirmed his view that the appellant was able to undertake the five occupations identified in his earlier report for 35 hours per week. He said: "In the final analysis it is my view that the appellant could complete all the above jobs on the basis that he has a positive attitude towards them and is therefore prepared to tolerate the physical demands contained therein, and under these circumstances he would more likely than not be willing to continue on working, even though he experienced fluctuations of his pain within the limitations of his tolerance." [12] On 29 September 2003 ACC issued a decision that the appellant was vocationally independent. The appellant returned to work at General Cables and continued to work there until April or May of 2005. About then, Dr Law provided a further certificate of incapacity and ACC again referred the appellant for a reassessment of his vocational independence pursuant to s. 109(2) of the 2001 Act. The vocational assessor identified eleven work types. Dr Turner again conducted a medical assessment (on 8 August 2005) and produced a report dated 15 August 2005. In that report, Dr Turner recorded a diagnosis of regional pain syndrome which he said "remains unchanged from my two previous assessments in 2000 and 2003". Dr Turner also said "At that time I had diagnosed him as having a chronic incurable condition, which has been managed using a pain management approach. I determined that he would continue to suffer recurrent flare ups of pain through activity as well as exposure to cold and no doubt in conjunction with stress. My present opinion remains the same. In terms of his work capacity there is no injury based reason that would prevent him from returning to light physical demand occupations where he can avoid lifting and carrying and has the opportunity to undertake micro and macro pause breaks for stretching exercises." [13] Dr Turner identified three work types which he considered were medically sustainable for the appellant, namely: cleaner; electronic equipment assembler; and spinner and winder. [14] Dr Turner noted that the appellant appeared depressed and recommended that he receive treatment for this condition. He also noted that the appellant would benefit from a physical programme designed to strengthen his right arm and core stabilisation of muscles in his spine, because he was "markedly deconditioned". [15] ACC then issued a 23 September 2005 decision confirming that the appellant continued to have vocational independence. That decision was based on Dr Turner's report. The Review Decisions [16] In a decision dated 27 July 2007, Reviewer Ms K Stringleman dismissed both applications for review. Appeals were subsequently lodged against both of those decisions. 6 Review 41880 - regarding ACC's decision of 29 September 2003 [17] ACC's 29 September 2003 decision was based on reports by Dr Turner of 25 August 2003 and 8 September 2003 establishing that the appellant had vocational independence. Dr Turner concluded that the appellant was capable of undertaking the five jobs identified by the Occupational Assessor namely: machine tool operator; caretaker and cleaner; factory process worker; car, taxi and light van driver; and spinning and winding machine operator. [18] The Reviewer (Ms K Stringleman) on page 15 of her 27 July 2007 decision considered s. 109(2) of the Act and concluded: "I have carefully considered both the 2000 and 2003 assessments of Dr Turner, the Applicant's evidence and the submissions made on his behalf. It is my view that the 2003 assessment illustrates a thorough and thoughtful consideration of the appellant's then present capacity for work. What the appellant is attempting to do in this review is to reconstruct his circumstances, as they existed then, from a distance of 4 years. My conclusion is that it is not possible to do so. Without clear evidence to show that Dr Turner's assessment of 2003 was flawed, there are no grounds on which to set aside his determination that the applicant had the capacity to work in the identified work types. My conclusion is that the applicant has not provided that evidence. Dr Turner's report is the best evidence available of the applicant's capacity for work in 2003." Review No. 42825 - regarding ACC's decision of 23 August 2005 [19] This application dealt with ACC's 23 August 2005 decision, where the appellant had been reassessed for vocational independence. Based on a report from Dr W Turner, ACC concluded that the appellant continued to have vocational independence, in the jobs of cleaner, electronic equipment assembler and spinner and winder. The reviewer (again Ms K Stringleman) noted at the top of page 7 of her decision that the appellant had been offered "a literacy course by Workbridge, but, he said, he would decline this until his applications for review were resolved." The Reviewer rejected the submission that there were flaws in Dr Turner's 2005 assessment and noted at her page 12: "The best evidence available concerning the applicant's capacity for work in August 2005 was the report provided by Dr Turner and the applicant has not provided the clear and cogent evidence that would be necessary before Or Turner's assessment could be set aside." The review application was dismissed. Further evidence of appellant to this court [20] The appellant had given evidence at Review and also gave evidence before me. His brief of evidence in chief is quite detailed and the following are extracts from it "15. ACC received a Report from Careers Services which identified amongst others the job as a cleaner. This was the job I was doing at the time at Ansett Airlines, however I was struggling at that time with the job, because of the pain in my right wrist. The work was of a repetitive nature. I have poor literacy. No attempt was made to address that and to try and re-skill 7 me away from the repetitive work area. As part of the Work Capacity Procedure I was referred to Dr Turner for the Medical Assessment. Dr Turner concluded that I was working 40 hours per week for Ansett Airlines as a cleaner. At the time I told Dr Turner that I was in fact struggling to maintain that employment and that I was suffering many symptoms from my right wrist. He had been my doctor, via Firestone and then my expert, via Mr Cadenhead. I was in pain all the time and I communicated this fact to Dr Turner. The cleaning job was repetitive and it worsened the pain. Dr Turner did not seem to take on board what I was telling him about the difficulties I was actually experiencing in the cleaning job ... 2003 MAY - ARC 18 17. Through 2001 and 2002 / struggled on with the job as a cleaner. ... FURTHER INCAPACITY MAY 2003 20. In desperation I went to Dr Law my GP. He wrote me out a further ARC18 certificate stating that I was incapacitated for work and that my condition had deteriorated. 21. ACC commenced weekly compensation but immediately referred me for a Vocational Independence Medical Assessment. There was no preceding IRP providing me with treatment steps. No attempt was made to identify what treatment might be required for my OOS. Nothing was explained to me about attending the Burwood Pain Clinic. 22 CRPS 23. The decision to change my diagnosis from OOS to CDRPS was not communicated to me or the consequences of that explained. Dr Turner appears to have been responsible for the change of diagnosis. Dr Turner did not tell me that he held the view that CRPS was of uncertain cause. I thought it simply confirmed my ongoing OOS. VOCATIONAL INDEPENDENCE MEDICAL ASSESSMENT - DR TURNER 24. Dr Turner provided the VIMA dated 25 August 2003. 25. By this stage I was working as a cable maker. I told Dr Turner that I was again struggling with this position because of the repetitive nature of the work. I told him that the pain had remained unchanged from the very outset when I was at Firestone. Dr Turner stated that I was fit to return to work. He asserted that the symptoms had settled with rest and treatment. This was not the case and this was not what I told him. . .. 29. I soldiered on at General Cables until May 2005 when the symptoms had become so severe that I simply could not work. ... DR LAW- ARC 18 CERTIFICATE 32. Dr Law provided me with an ARC 18 incapacity certificate. The response of ACC was again to refer me for Vocational Independence. Once again no IRP was drawn up with treatment steps. There was no initial Medical Assessment. My case managers did not explain how or why the initial medical assessments were bypassed. I was simply told that I had to undertake the VIMA and VIOA. 8 VOCATIONAL INDEPENDENCE - MEDICAL ASSESSMENT - DR TURNER 33. Dr Turner provided his report dated 15 August 2005. 34. He recorded my diagnosis of Regional Pain Syndrome which he stated had remained unchanged from the two previous assessments in 2000 and 2003. My symptoms had always remained the same and ACC had done nothing to treat those symptoms and help me recover from my injury. 35. Dr Turner concluded that my condition would have to be managed "using a pain management approach". ACC made no attempt to provide me with pain management and the opportunity to attend the Burwood Pain Clinic. 36. Significantly Dr Turner stated, "In terms of his work capacity there is no injury based reason that would prevent him from returning to light physical demand occupation. . .. COMPLEX VOCATIONAL INDEPENDENCE MEDICAL ASSESSMENT - 2008 43. On 7 April 2008 I was seen by Dr Biggs regarding his assessment. He issued a report also dated 7 April 2008. ... 51. Dr Biggs records in his report in relation to Dr Turner: "He always felt there were some outstanding treatment issues in that the claimant appeared depressed and that he might require psycho therapy as well as treatment for depression. He felt he was markedly deconditioned and that he would benefit from a physical reactivation programme." 52. I accept that I have felt increasingly down over the years because of the pattern which has developed. The pattern is one where I will work in a job with the pain syndrome for a period of time but inevitably this grinds to a halt until I simply cannot continue. There is no end in sight regarding my problem and predicament because treatment is ..." [21] The appellant was carefully cross-examined before me by Mr Evans and, inter alia, recalled that after one of Dr Turner's reports the appellant went to Dr Turner's house to leave messages that the appellant's pain problems had not been understood and he was struggling to work. Further medical reports from Dr R D Wigley (consultant in rheumatology and rehabilitation medicine) [22] Dr Wigley issued a full report dated 23 March 2010 concluding as follows: "CONCLUSIONS Mr Somlay has major pain and disability from Dr Quervain's tendinopathy, tennis elbow (epicondylitis), and bicepital tendinopathy affecting the right arm. These were all caused by his work with Firestone, sustained by subsequent work and complicated by a secondary chronic neuropathic pain syndrome. This has made him unable to do any work involving lifting carrying pulling and any work that he cannot do with his non-dominant left hand. The severe pain and medication preclude sustained concentration on any task so that he could not be relied on to perform even light work consistently. 9 I conclude that he does not have vocational independence to work and certainly not 35 hours or more per week as a sales assistant in soft furnishings, drapery and homeware or as a sales assistant in painting and home decorating supplies due to his severe pain resulting from injuries caused by prolonged repetitive high force work." [23] Dr Wigley issued a 8 June 2010 supplementary medical report answering specific questions as follows: "In answer to the questions; 1) In your opinion would Mr Somlay have been able to work for 30 to 35 hours per week when assessed by Dr Turner on 25 August 2003? Comparison is difficult as Dr Turner did not record the examination findings on which he based his assessment. In view of my overall assessment of the general trend in his condition since 1989, detailed above, I would consider it quite unlikely that his vocational incapacity was not significantly less at that time than at the other assessments. Dr Turner considered that Mr Somlay could work 30 to 35 hours per week in the following jobs. In my opinion, at that time he had sufficient limitations due to his wrist tenosynovitis, epicondylitis and his neuropathic pain to preclude work 30 to 35 hours per week in these jobs; 1) Machine tool operator. This involves repetitive work with vibration often in awkward postures using moderate to high force. This would have overloaded his wrists, elbows and shoulders and would have aggravated his pain so that he would not have been able to sustain this work for 30 to 35 hours per week in 2003. 2) Caretaker cleaner. His shoulder and wrist problems would prevent him from the required lifting, carrying, bending, twisting and any reaching above shoulder height. All these would aggravate his pain leading to cessation of work. He would not have been able to sustain this work in 2003 for 30-35 hours per week. 3) Factory process worker. This would require repetitive movements involving the wrists and shoulders. There would be lifting in some jobs. Clearly he would not have been able to sustain this work in 2003 for 30-35 hours per week. 4) Car/taxi/light van driver. This requires repeated lifting of baggage, parcels etc with repetitive shoulder movements in driving. Clearly he would not have been able to sustain this work 30-35 hours per week in 2003. 5) Spinning and winding machine operator. This is repetitive work requiring heavy lifting and reaching up and across. I am sure that he would not have been able to do this work 30-35 hours per week in 2003 All these are light to heavy jobs involving lifting, carrying and/or repetitive forceful work which was and still is beyond his capacity. 10 2) In your opinion would Mr Somlay have been able to work for 35 hours or more per week when assessed by Dr Turner in 15 August 2005? Dr Turner's examination findings indicate that the level of disability due to the physical disorders and the resulting neuropathic pain syndrome was not significantly different from the overall pattern. I do not believe that he could have sustained full time work in any of the jobs listed in 2005. () Cleaner. His shoulder and wrist problems would prevent him from doing the required lifting, carrying, bending, twisting and any reaching above shoulder height. All these would aggravate his pain leading to cessation of work. In my opinion he would not have been able to work 35 or more hours in this occupation in 2005. 2) Electronic equipment assembler. This would require repetitive movements in postures that would have aggravated his shoulder wrist, elbow and regional neuropathic pain. I do not believe that he could have sustained more than a few hours in this work. In my opinion he would not have been able to work 35 or more hours in this occupation in 2005. 3) Spinner and winder. This is repetitive work requiring heavy lifting and reaching up and across. I am satisfied that he would not have been able to do this work in 2005. In my opinion he would not have been able to work 35 or more hours in this occupation in 2005. Conclusion After a careful analysis of all the available information I conclude that he would not have been able to work 30 to 35 hours or more per week in any of the jobs for which he was said to have vocational independence when he was assessed by Dr Turner in 25 August 2003 or on 15 August 2005." Relevant law [24] Sections 107, 108 and 109 of the 2001 Act are applicable to this case. "107 Corporation to determine vocational independence (1) The Corporation may determine the vocational independence of- (a) a claimant who is receiving weekly compensation: (b) a claimant who may have an entitlement to weekly compensation. (2) The Corporation determines a claimant's vocational independence by requiring the claimant to participate in an assessment carried out- (a) for the purpose in subsection (3); and (b) in accordance with sections 108 to 110 and clauses 24 to 29 of Schedule 1; and (c) at the Corporation's expense. (3) The purpose of the assessment is to ensure that comprehensive vocational rehabilitation, as identified in a claimant's individual rehabilitation plan, has been completed and that it has focused on the 11 claimant's needs, and addressed any injury-related barriers, to enable the claimant- (a) to maintain or obtain employment; or (b) to regain or acquire vocational independence. 108 Assessment of claimant's vocational independence (1) An assessment of a claimant's vocational independence must consist of- an occupational assessment under clause 25 of Schedule 1; and (b) a medical assessment under clause 28 of Schedule 1. (2) The purpose of an occupational assessment is to- (a) consider the progress and outcomes of vocational rehabilitation carried out under the claimant's individual rehabilitation plan; and (b) consider whether the types of work (whether available or not) identified in the claimant's individual rehabilitation plan are still suitable for the claimant because they match the skills that the claimant has gained through education, training, or experience. (3) The purpose of a medical assessment is to provide an opinion for the Corporation as to whether, having regard to the claimant's personal injury, the claimant has the capacity to undertake any type of work identified in the occupational assessment and reflected in the claimant's individual rehabilitation plan.' [25] Section 109(2) of the Act provides: "109 ... (2) However, the Corporation must determine the claimant's vocational independence again if (a) the Corporation has previously determined that the claimant had- vocational independence under this section; or a capacity for work under section 89 of the Accident Insurance Act 1998; or (ifi) a capacity for work under section 51 of the Accident Rehabilitation and Compensation Insurance Act 1992; and (b) the Corporation believes, or has reasonable grounds for believing, that the claimant's vocational independence or capacity for work may have deteriorated [due to the injuries that were assessed in the previous vocational independence or capacity for work assessment." [26] In Bondarenko (173/05), Judge Cadenhead held that the vocational independence assessment process was not to be examined in a mechanical and rigid way. Rather, "What is required is a common sense application of the legislation to the requirements of the procedure" (Wildbore 94/06 - Judge Cadenhead). [27] In Millar (247/07), Judge Ongley emphasised the need for a material consequence of any error affecting the result of the vocational independence assessments. [28] In Ewart (51/02), the Court confirmed that an appellant's self analysis of his physical capabilities: "would not carry the day where it is set against the advice of a 12 specialist". A claimant's self analysis is not sufficient to establish that the identified work types are unsuitable. [29] Ramsay v ACC (High Court, Dunedin, AP412/14/02, Hansen J), confirms that the Court is not likely to overturn the assessments of a duly qualified and appointed assessor unless there is clear and cogent evidence which gives rise to a series of doubt about the efficacy of those assessments. However, in Martin v ACC [Wellington Registry, Ronald Young J, 7 August 2009] considered the effect of Ramsay and summarised his findings at page 15: [36] In summary, therefore: a) when assessing vocational independence by the Corporation the Ramsay principles apply, b) the review and any appeal to the District Court are to be determined according to the statutory review and appeal rights, Wildbore and Austin Nichols. The Ramsay principles have no application to such reviews or appeal to the District Court; c) the approach in (b) therefore requires the reviewer or District Court to consider all the relevant evidence and to decide if they are satisfied the claimant is vocationally independent. The medical assessor's opinion is to be given no pre-eminence solely because of its statutory basis; d) if the reviewer or District Court reach a different conclusion on the evidence as to vocational independence than the Corporation (or reviewer) then the decision is wrong, the obligation on the appellant met and a different decision should be substituted; e) in assessing expert medical evidence factors such as (non- exhaustive) the extent and relevance of the practitioner's qualifications and experience, the comprehensiveness of the evidence gathered, the quality of the report, where the preponderance of opinion lies and the validity of other medical opinions, will all be relevant in deciding the ultimate question.' Discussion [30] As set out above, there has been further evidence subsequent to the Review decisions. [31] The appellant challenges Dr Turner's diagnosis of chronic regional pain syndrome, and, the finding that he is vocationally independent. Diagnosis of Chronic Regional Pain Syndrome by Dr Turner (Al 334/07) [32] Mr Evans put it that it is difficult to understand precisely what the claimant wants to achieve in relation to this appeal. The appellant considers that ACC has changed its position in relation to the appellant suffering from work related injuries; but there has been no such change and no decision pursuant to s.64 of the Act is required to be made. Section 64 requires ACC to give notice of any decision it makes on a claim. [33] The appellant does not agree with the opinions reached by Dr Turner and other medical specialists. Those reports were commissioned by ACC for the basis of assessing the appellant's vocational independence. 13 [34] Various decisions have been made by ACC in relation to the appellant's vocational independence, including the one subject to the present challenge. It is accepted by Mr Evans that ACC must give notice of its decisions, and notice was appropriately given by letters dated 29 September 2003 and 23 August 2005. [35] Mr Evans submits that there is no jurisdiction to consider this appeal (Al 334/07), because the provisions of s. 135 of the Act have not been complied with. Section 135(2)(c) requires that, in order for a review to take place, the applicant must "identify the decision or decisions in respect of which it is made". "Decision" is defined in s.6 of the Act. Cases have dealt with this issue before. If ACC confirms the status quo, then this is not a decision (Langley (119/05). [36] In a rare case, a claimant can provide new information which is so compelling, that a new decision should be issued. An example was the case of Patangata (104/06), where the original injury was considered to be a sprained ankle, but further medical opinion provided by the appellant considered it was an undiagnosed air embolus. The Court considered that ACC was bound to answer two questions in light of this medical knowledge, first, whether the explanation of the injury advanced was within the scope of the original claim for cover and, secondly, whether it was satisfied that the explanation was a basis for entitlements to continue. [37] Having regard to the Patangata case, Mr Evans submits that the medical evidence in the present case is not such as to require ACC to issue a fresh decision. [38] The appellant has relied upon the assessment by Dr Law, his General Practitioner. Unlike Dr Law, Dr Turner is an Occupational Medicine Specialist. | accept that in the present case his opinion should be given greater weight than that of a GP, like Dr Law. [39] Reliance is also placed on the report of Dr Wigley who has endeavoured to make findings about the appellant's medical condition going as far back as 2003 and 2005. [40] Mr Evans submitted that there is no requirement on the Corporation to issue a fresh decision and that the appeal (Al 334/07) should be dismissed. However that appeal relates to ACC's 29 September 2003 decision that the appellant was vocationally independent. The concerns I express below regarding appeal Al 335/07 apply. Vocational Independence (Al 335/07) [41] Also in issue is Acc's decision of 23 September 2005 confirming that the appellant continued to have vocational independence. [42] The appellant has criticised the approach adopted by ACC in relation to s. 109 of the Act (about reassessment by ACC of vocational independence). However, it was the appellant's GP, Dr Law, who provided the medical certificate in 2003 which opined that the appellant's condition had deteriorated. [43] ACC is required by s. 109(2) of the 2001 Act and, in particular, subparagraph (b) to revisit the question of vocational independence, if there are "reasonable grounds for believing" that "the claimant's vocational independence ... may have deteriorated 14 due to the injuries that were assessed in the previous vocational independence or capacity work assessment". ACC referred the appellant back to Dr Turner for further comment so that, in his report of 25 August 2003, under the heading of "Diagnosis and Discussion", Dr Turner said: "I agree with Dr Borowczyk that the appellant suffers from a chronic regional pain syndrome affecting his right arm. Significant pathology has been excluded by way of his normal nerve conduction studies and MRI cervical spine scan. His pain syndrome can be regarded as a chronic incurable medical condition. Clearly he is managing reasonably satisfactorily using a pain management approach. The recent flare-up no doubt arose as a consequence of exacerbation of his pain syndrome. This has now settled with rest and treatment and he is fit to return to his usual job as a cable maker. ..." [44] At paragraph 37 of her submissions, counsel for the appellant submits that Dr Turner mistakenly used a period of 30 hours per week. That is incorrect. On page 4 of his report of 25 August 2003, the heading is as follows: "A. Those jobs for which he would be capable under undertaking for 30 and 35 hours per week are: ..." Dr Turner has made reference to 35 hours per week which is the statutory test and there is no substance to that criticism. Dr Turner also reaffirmed his view in his letter of 8 September 2003 which refers to the jobs being medically sustainable for 35 hours per week. It is not credible that such an experienced specialist as Or Turner would misunderstand the weekly hours involved. [45] Dr Turner has made reference to the pain experienced by the appellant. On page 2 of his report, he notes that the appellant describes: "the most significant pain as being in the right arm, over the wrists and extensor forearm/elbow. There is some stiffness in his fingers in the morning which he puts down to arthritis. ...". Dr Turner has had regard to pain experienced by the appellant and specifically adverted to it in his "Diagnosis and Discussion" part of his report. His findings are also entirely consistent with Dr Borowczyk who, in a letter of 8 August 2003 to Dr Law, noted: "Jim merely suffers from chronic repetitive tenosynovitis affecting the abductor pollicis longus and extensor pollicis brevis muscle and the lateral wrist extensor." Dr Borowczyk concluded that the appellant should, if possible, "have work that is not endlessly repetitive" in relation to wrist extension and to avoid a lot of twisting movements of his hand and wrist. [46] I agree with Mr Evans that the appellant seems to have a very restricted view of his own physical capabilities. The Court must adopt a cautious view in line with Ewart (supra). The appellant's view of his physical restrictions cannot carry the day. [47] Mr Evans also puts it that, in his report of 8 June 2010, Dr Wigley, who is a Rheumatologist, strays outside his area of expertise, when on page 2 he makes reference to the Vocational Independence Occupational Assessment and the requirement of literacy (of the appellant). The point has already been made that Dr Wigley is at a significant disadvantage having been asked in 2010 to assess, retrospectively, the appellant's physical condition and his ability to medically sustain jobs as at 2003. Mr Evans submits that Dr Wigley's assessment is no more than a contrary opinion; and the value of his report is significantly undermined by the fact that he has been asked to undertake a retrospective assessment, seven years after the events in question. I accept that, for that reason alone, extreme care must be taken in affording any weight to his opinion. 15 [48] Ms Tucker made detailed comments about purported flaws in the approach of Dr Turner. Inter alia she queried how the appellant could have coped with being a machine operator in 2003 but not in 2000, and how he could work at all when suffering intense pain. She put it that the pain had not been taken into account and nor had the appellant's problems with literacy, and that his inability to handle repetitive movements meant that none of the assessed jobs could be suitable. agree with her that I simply cannot absorb the views and assessments of Dr Turner and be dismissive of the medical evidence supporting the appellant; and I must look at the evidence overall when considering whether the appellant has discharged his onus of proof on the balance of probabilities to show that the decision of ACC is incorrect. [49] Essentially, Ms Tucker's stance is that the appellant still has an injury-based incapacity for work and that Dr Turner's views of are flawed. Of course, as Mr Evans points out, it was the occupational assessor who selected jobs as appropriate for the appellant and an analysis of Dr Turner's reports shows that he has not merely rubber stamped those assessments. Dr Turner clearly recognised that the appellant suffers much pain but finds that some of the jobs are medically sustainable for the appellant. [50] I agree that Dr Turner's reports are careful and thorough and there are no flaws in them. However, I see no reason to be dismissive of the opinions and reasoning of Dr Wigley referred to above. [51] Quite frankly, my concern as I consider this case overall at this stage is that I am not quite convinced yet that, on the balance of probabilities, the appellant is vocationally independent and has been since 29 September 2003 and, then again, as at 23 September 2005 as a cleaner, electronic equipment assembler, and spinner and winder. I am particularly concerned about the extent and work-effect of the appellant's remaining injury-pain. [52] Much as I do not wish to prolong these proceedings, I would like a suitable independent medical specialist (with expertise about pain) to deal with this issue of whether the appellant was vocationally independent in 2005, 2003 and now for that matter. I feel it would be helpful for me to have such a report from a suitable specialist to be approved by me, but at the expense of ACC, who is not retained by either ACC or the appellant but is, in effect, reporting direct to this Court. I order accordingly and ask the Registrar to arrange a telephone conference between counsel and me to progress this matter as soon as reasonably convenient to all. Accordingly, I make no final decision on this appeal yet. Judge P F Barber District Court Judge WELLINGTON Al 334-07 & 335-07.doc(aw)