Sayer v Accident Compensation Corporation

IN THE DISTRICT COURT AT INVERCARGILL (2015] NZACC 365 ACR 151/13 UNDER THE ACCIDENT COMPENSATION ACT 200 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN JEREMY SAYER Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 3 August 2015 Appearances: The appellant in person H A Evans for the respondent Judgment: 30 November 2015 RESERVED JUDGMENT OF JUDGE L G POWELL [1] The appellant, Jeremy Sayer, has cover for left lateral epicondylitis, an injury to his left elbow, as a result of a work related gradual process injury, having suffered that injury against a broader history of injuries to his left arm. 2] Within a month of cover being granted, the Corporation began to explore Mr Sayer's vocational capacity by way of an initial occupational assessment undertaken on 7 November 2011. This was followed by an extensive series of assessments and resulted in the commencement of a vocational independence process in March 2012. [3] The vocational independence occupational assessment ("VIOA"), carried out by Kay Pringle on 28 March 2011 identified 11 work types suitable for Mr Sayer.' Although a vocational independence medical assessment ("VIMA") took place almost immediately, the VIMA assessor, Dr Ian Bell concluded that Mr Sayer's rehabilitation was not in fact complete and that Mr Sayer was likely to require surgery. Although Dr Bell nonetheless concluded that there was some work tasks that were already medically sustainable for Mr Sayer, the Corporation put the vocational independence process on hold until after the proposed surgery to Mr Sayer's elbow took place in May 2012. As a result the VIMA ultimately relied upon by the Corporation was one completed by Dr Alex Marshall, occupational medicine specialist on 19 November 2012. As a result of the VIOA and VIMA, on 29 November 2012 the Corporation determined that Mr Sayer had vocational independence with an ability to work for 30 hours or more per week in the following work types: Service Station Attendant . Sales Assistant - Motor Vehicle Parts and Accessories . Sales representative - (Motor Vehicle Parts and Accessories) . Motor Vehicle Caravan Sales . Products Grader . Insurance Loss Adjuster Purchasing Officer/Production Officer Stock Clerk [4] Mr Sayer challenged the decision but it was upheld at review. At appeal Mr Sayer has relied upon reports from his orthopaedic surgeon, Alex Malone, as well as his general practitioner, Dr Rob Seddon-Smith that he was not ready to return to work at the time of the vocational independence decision. Mr Sayer also raised the following specific issues in his written submissions in support of the appeal: Being Service Station Attendant, Sales Assistant Motor Vehicle Parts, Accessories, Sales Representative (Motor Vehicle Parts and Accessories), Motor Vehicle Caravan Sales, Products Grader, Delivery Driver (Van or Car), Insurance Loss Adjuster (Motor Vehicles), Purchasing Officer, Stores Clerk, Painting Trades Worker and Home Improvements Installer. [a] That Mr Sayer only received the documentation from the Corporation immediately before the review hearing in February 2013; [b] That at review the Corporation and the reviewer "turned ... letters from [Mr Sayer's] surgeon and general practitioner into hearsay"; [c] The Corporation made Mr Sayer sign an ACC167 form under duress and that was an illegal document; [d] That the respondent did not accept medical certificates from Dr Seddon- Smith following the Corporation's decision that Mr Sayer had obtained vocational independence; and [e] The Corporation forced Mr Sayer to attend work trials before his injury was treated by surgery. [5] Mr Sayer acknowledges that by the time the appeal was heard he has been able to return to his pre-injury occupation but nonetheless submitted the Corporation's decision finding him vocationally independence was premature, and with more assistance from the Corporation he could have returned to work faster. [6] In assessing these issues I note that the vocational independence process has been widely canvassed in the District Court, where it has been continuously emphasised that a holistic and common sense approach should be adopted when considering vocational independence matters. [7] In short the correctness or otherwise of the decision will come down to the robustness of the process, the assessments themselves and a consideration of whether in the circumstances, the decision makes sense. Discussion and Analysis [8] I begin my analysis by considering the specific issues raised by Mr Sayer. Unfortunately for Mr Sayer, none of these can provide any basis for setting aside the Corporation's decision of 29 November 2012. Specifically with regard to the first two issues, the late receipt of information from the Corporation prior to the review and the reviewer's treatment of the evidence relied on by Mr Sayer, can have no bearing on the outcome of the present appeal. Mr Sayer has now had the material provided by the Corporation at review for some two and a half years and the legislation is clear that this appeal is by way of rehearing. This means I am required to consider the substantive issues afresh on the basis of the evidence presented at review and any other evidence subsequently admitted in the course of hearing this appeal. Thus, any issues of delay or the approach of the reviewer at review are not relevant to the matters now before me. [9] Likewise any requirement by the Corporation for Mr Sayer to sign an ACC167 form is also irrelevant. As I noted in Powell v ACC and K v ACC" there was nothing to stop the Corporation requesting a claimant to sign an ACC167 form, but in the event that the claimant did not, the Corporation was not entitled to suspend that claimant's entitlements. Such a scenario clearly has no bearing on the Corporation's decision to find Mr Sayer vocationally independent on the basis of the assessments carried out by Ms Pringle and Dr Marshall. [10] The remaining two specific matters raised in Mr Sayer's written submissions also cannot assist Mr Sayer. Specifically s 1 1 1 (a) of the Accident Compensation Act 2001 provides that the effect of a vocational independence decision finding a claimant is able to work 30 hours or more per week in work types other than his pre- injury employment means that the fact that a claimant may continue to be incapacitated by his/her injury for his or her pre-injury employment is irrelevant. Likewise, the outcome of the vocational independence process is not dependent on the successful outcome of work trials, but rather the VIOA and VIMA assessments carried out as it is the VIOA and VIMA that underpin the Corporation's decision. Whether any work trials were successfully completed or not may well be a matter that is relevant to the assessments themselves, but the circumstances under which a claimant may have been required to attend the work trial is not relevant to the Corporation's vocational independence decision. [2014] NZACC 89 [2014] NZACC 90 [11] This leaves the wider issue of whether Mr Sayer was in fact vocationally independent as at the date of the Corporation's decision. Mr Sayer has not taken any issue with the VIOA carried out by Ms Pringle, so the only issue before the Court is whether the eight work types that Mr Sayer was ultimately found vocationally independent in were medically sustainable. [12] Having considered the VIMA prepared by Dr Marshall, I am satisfied that Dr Marshall clearly took into account the effect of Mr Sayer's left lateral epicondyle injury against the background of the earlier injuries to his left arm. Dr Marshall noted in particular that Mr Sayer had had surgery in May 2012 (at that point only five months before), that Mr Sayer continued to experience aching in the lateral epicondyle area, as well as cramping and stabbing sensations around and above the scar area even at rest. Dr Marshall then undertook a careful examination and in particular identified the arm and wrist movements that caused pain and discomfort to Mr Sayer. Overall Dr Marshall then noted: REHABILITATION Jeremy has had all of the treatments that one would suggest in escalating order, for his left elbow. He unfortunately has some persistent issues with pain there and appears to have some ongoing signs of residual left lateral epicondylitis but, having undergone surgery already, one would not be suggesting further treatments as such for it. It is likely to be the type of thing with both of his arms that he needs to tailor his activities to not be particularly aggravatory to the arms and this pertains very well to the guidelines of this process and the lighter jobs without major loaded repetitious activity of the arms with tool use etc later on. DISCUSSION AND OPINION Mr Jeremy Sayer had surgery for left lateral epicondylitis on the background of bilateral issues and previous right arm issues (and some ongoing right arm issues). He does still have some residual signs of left lateral epicondylitis present. With the issues he has had with both of his arms one would recommend that he doesn't go into work that is causing heavy loading through the arms, or is requiring major repetitive loading of the left arm while performing it. He would however be able to work in many areas of work outside of these. In this instant mood and fatigue are not limiting features. The limiting issue relates to pain experienced from the left lateral epicondyle if work is overly demanding upon it. [13] Dr Marshall went on to consider the work types identified by Ms Pringle and with regard to those he regarded as being medically suitable for Mr Sayer, commented: 621611 Service Station Attendant - This is sedentary to light work. Frequent standing is noted and walking about the workspace. Frequent repetitive hand and finger movements are necessary for operating electronic tills and petrol pumps. The use of hand held items such as pens cash registers etc is noted. The work detail sheets details sedentary to light demand not performing repetitive loaded activities with either of the arms, pertaining to the modern day factor of this work largely as a sales assistant of light items, and taking payment for petrol. This work should be tolerated well and although pain might present on occasions if having to perform a heavier function upon somebody's car under the bonnet etc, this should not limit him from completing the duties in this area as designated by the work sheet. He indicates he doesn't think that he would be that good actually, eg lifting up some types of bonnet. 621312 Sales Assistant - Motor Vehicle Parts/Accessories. This is a light to medium work demand level. Frequently stands at sales counters or walks about the workspace. Lifts and passes items across the scanner and may wrap or pack goods. Repetitive hand and finger movements are frequently necessary to operate tills, computers, pricing guns. The work is not overly heavy, and one is not performing major tool welding or loaded activity on the arms. He could perform this well and pain would not be expected to obstruct it. He indicates he probably would be able to do this but would not be great with the mathematics involved. He hasn't done counter work before. He could look at this 611313 Sales Representatives (Motor Vehicle Parts and Accessories). This is a sedentary to light physical demand level position. Sitting will be frequent when preparing sales reports etc. Stands and walks frequently when on sales trips, demonstrations. Repetitive movements will be required when driving and using a computer. Driving is likely to be frequent. Use of hand held objects is constant. The work is light and would not trouble him with major loading of the left arm. He could perform this well and pain would not be expected to be an obstruction. He indicates yes. 62131 1Motor Vehicle Caravan Sales. This is a sedentary to light work demand level with frequent standing or walking about the workspace. Sitting when participating in test drives or preparing contracts for sales. Bending, squatting or crouching movements are likely only on occasion. Repetitive hand and finger movements are necessary to operate tills and computers. Driving is likely to be required. Use of office hand held equipment such as pens or calculators will be occasional only. The work is light and would not trouble him with major loading of the left arm. He could perform this well and pain would not be expected to be an obstruction. He indicates yes this would be worth looking at. 839312 Products Grader. Typically this has a light physical demand. Standing at specified areas is noted. Sitting is occasional. Lifting is occasionally required. Stretching out and across may be required for inspecting items. Bending is occasionally required. Squatting, crouching or kneeling may be required. The work is indicated to be light and does not demand major pressured action with the left arm while performing it. It should be tolerated well. Pain might present on occasion with reaching and grabbing some form of product but given that the products are light as noted this would be managed well and should not obstruct the work. He indicates no, or it depends what he would be grading. His partner did her back while doing this. 599612 Insurance Loss Adjuster - This is a sedentary to light physical demand level. Frequently standing, walking and sitting is required. Occasionally stretching up and reaching across may be occasionally required. Bending, squatting, crouching and kneeling may be occasionally required. Repetitive movements with the hands are required. The work is light and does not demand loaded left arm activity. He could perform this well and pain would not be an issue . He indicates he was looking at doing this and feels that yes he could do it especially on vehicles. 591113 Purchasing Officer/Production Officer - This has a sedentary to light work demand level. Bending, squatting or crouching movements may be required. Lifting, carrying, stretching, twisting or climbing movements are not significant components of this work. Repetitive movements are on an occasional to frequent basis. Driving is not a component of this work. The work is light and does not demand loaded left arm activity. He could perform this well and pain would not be an issue. He indicates he is not sure why this is in. He has done some of this type of thing but not on a big scale. 591115 Stock Clerk. This is deemed a sedentary to light physically demanding. Sitting is frequent at a work station. Standing and walking about the workplace is frequent. Stretching, twisting, climbing lifting or carrying movements are not typically a significant component of this job. Repetitive movements are occasionally to frequently required. Driving is not a significant component of this work. The use of hand held objects and equipment is frequent. Mental activities are indicated to be required. The work is light and does not demand loaded left arm activity. He could perform this well and pain would not be an issue. He indicates he doesn't know why this is in but he would need training for it. [14] Against those detailed conclusions are the comments of Dr Seddon-Smith and Mr Malone, and indeed also comments from another orthopaedic surgeon who has subsequently examined Mr Sayer, Neville Palmer. Although Dr Seddon-Smith concluded in October 2012 "that a return to work by mid November is overly optimistic" he nonetheless confirmed that Mr Sayer had capacity to both work in his pre-injury occupation and other types of employment. In cautioning against Mr Sayer returning to work it is clear that Dr Seddon-Smith was focused on Mr Sayer returning to work in his pre-injury occupation, as the following comments from his letter of 19 October 2012 demonstrated: What I suggest you do is accept that at least for the foreseeable future, Jeremy is unlikely to be able to work in his past capacity as a mechanic. To be effective in such a role required excessive use of the muscles affected and more to the point requires prolonged continuous application of force, often in confined spaces. Although he may eventually be able to return to this type of employment, he would be better retrained to use his mechanical skills in a way that does not require him to do so much with the arms. [15] In this case there was no suggestion that Mr Sayer was fit for his pre-injury occupation and the vocational independence process would have been inappropriate if there was. On the contrary the work types that Dr Marshall concluded were suitable for Mr Sayer met the criteria identified by Dr Seddon-Smith. Instead what is apparent is that in neither his 19 October 2012 letter, nor his subsequent comment to the Corporation on 11 April 2013 did Dr Seddon-Smith ever consider Mr Sayer's capacity against the work types identified as being medically suitable by Dr Marshall and specifically why those work types could not be carried out by Mr Sayer. [16] Similar observations can be made with regard to Mr Malone's comments on 12 February 2013. Again, Mr Malone's focus was on Mr Sayer returning to his pre- injury work and like Dr Seddon-Smith provided no comment with regard to Mr Sayer's ability to carry out the work types considered by Dr Marshall. Instead Mr Malone commented only that: I would be happy to support the fact that Jeremy is not ready for any vocational training or return to work at present, as his pain levels are still too high. There is some question regarding the exact rehabilitation he has undergone, although Jeremy has confirmed he has had some stretching and some eccentric strengthening on the elbow it does not appear to have been the majority of his rehabilitation throughout this period. (17] Mr Palmer in turn did not even express a view of Mr Sayer's vocational capacity in his own assessment of 17 March 2014 and it accordingly provides no basis for setting aside the vocational independence decision. [18] As a result I am satisfied that nothing in the comments provided by Dr Seddon- Smith, Mr Malone and/or Mr Palmer can possibly provide a basis for setting aside the vocational independence decision based on Dr Marshall's careful and considered analysis which I consider provided a far more detailed and accurate analysis of Mr Sayer's ability to undertake the work types for which he was found to be vocationally independent. I prefer his analysis accordingly. As a result Mr Sayer's appeal must fail. Decision [19] The appeal is dismissed. There is no issue as to costs. Judge L G Powell District Court Judge ACR 151-13-Sayer