Coffin v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 268 /2000 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JOHN CLEMENT COFFIN of Wellington Appellant (Appeal No. Al 182/99) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WELLINGTON on the 26th day of September 2000 APPEARANCES/COUNSEL H Armstrong for appellant S Scott for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the respondent was correct in its decision of 17 March 1999 that the appellant had a capacity for work pursuant to s.51 of the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant was granted cover under the Act as a result of a laceration to his right ring finger in September 1994. In August 1995 the appellant signed an Individual Rehabilitation Plan with his Case Manager. The Plan provided that the appellant would be referred to Stu Mccann Associates, a job placement agency, for a possible work trial. As the appellant's finger was still causing him problems the respondent made an offer in respect of private hospital surgery, which the appellant did not accept as he preferred to wait his turn on the public hospital waiting list. 2 As a result of the reference to Stu Mccann Associates, a work trial involving 20 hours per week was arranged with Petone Trust to commence in August 1996. On 26 November 1996 the appellant advised the respondent that he was giving up that job because it had aggravated the condition of his finger. In June 1997 the appellant's GP reported that the appellant was still having problems with his right hand and was still awaiting surgery. The association with Stu Mccann and Associates was then waived pending the surgery. In a report on 30 July 1997 Dr S J Mills, an Orthopaedic Registrar, stated that an examination of the right ring finger indicated that it could not be improved by surgery. The respondent then referred the appellant to Dr Keir Howard, an Occupational Medicine Specialist. In a report dated 2 October 1997 Dr Howard stated: "The real problem however, in terms of functional limitation, would appear to be the pain from which he (sic) suffering. The actual limitation of movement of the finger should not impede a wide range of activities and, but for the pain, I would see no problem as to why he would not be able to undertake his normal work." Dr Howard's conclusion was: "In short therefore, although Mr Coffin appears to have some level of disability, I am of the opinion that the physical impairment is minimal and there should be no problems with him undertaking a wide range of employment options. However, he does appear to be limited as a result of ongoing pain. I feel that the possibility of surgical intervention needs to be further investigated and I suggest that Mr Alan Thurston would be able to provide an opinion in this respect." In a report of 2 July 1998 Mr Thurston stated: On examination today I could find very little wrong with the finger. He voluntarily restricts the movement of the finger and power grip testing was confounded by his not co-operating very well. He told me that the finger becomes painful and swollen although it looked like a normal finger to me today. I have suggested to him that he bring the finger back again if it swells again in the future and we will have a look at it on a more urgent basis." When the respondent received that report a new Individual Rehabilitation Plan was entered into on 17 August 1998, with the outcome to be a finish on 31 December 1998. The proposals in that Plan were that: 1. The appellant be referred to the Rehabilitation Institute for a Functional Capacity Evaluation. 2. That he be referred to Career Services for vocational assessment and CV preparation. 3 3. That he be referred to a job placement agency for job search assistance. In a Vocational Capacity Evaluation report made on 24 August 1998 the Occupational Therapist, Ms L Murphy, concluded that the appellant should avoid activities which required lifting, repetitive hand movements and activities requiring sustained grip. She also considered that physiotherapy might assist the appellant although he was not confident to undertake that. Her report did note: "Additionally, John reports experiencing pain over the lower right and left ribs as a result of his 1994 crushing injury, which tore the rib linings. He experiences pain that may linger for a few days 'every now and then', if he undertakes bending or lifting tasks." In a Vocational Assessment carried out by Ms C Cunningham on 28 October 1999, she concluded that the appellant possessed a number of transferable skills, and had potential employment options. The appellant was then referred to "The Job Finders" as a result of which a report was issued by Ms I Taylor on 14 January 1999, in which she stated: "I regret to inform you that John Coffin has not taken up this opportunity for job placement. I have had several discussions with Mr Coffin in relation to vocational direction and work trials. I have tried to reassure Mr Coffin that we would make every attempt to find him work in an area that would accommodate his injuries and arthritis, but Mr Coffin has decided not to continue his job search. At my initial interview with Mr Coffin the following areas were identified for vocational direction - light delivery work, working with animals. A work trial would have been ideal for Mr Coffin, it would have given him the confidence he needs to re-enter the workforce. Mr Coffin has a number of good practical skills that he could use in the job market. If Mr Coffin could get past his barriers, particularly there is lack of confidence in the work place, I am sure he would be able to find some worthwhile work." On 26 January 1999 the respondent wrote to the appellant stating that it considered he had completed his rehabilitation programme, and that it was then intended that he be referred for assessment of his capacity for work. The letter then set out in some detail how the assessment would be undertaken. The appellant was then referred to Mr T Neser for an occupational assessment. In his report Mr Neser noted that the appellant had a limited educational background, but considered he had a wide range of transferable skills. Mr Neser made the comment: "However, he is very focused on the effects of his different injuries to the point where he is probably not able to fully make use of all his existing life and work skills." Mr Neser's additional comments were: "John complains about restricted movement and inability to grip in his right hand which does complicate things somewhat because he is right handed. However, he also complains at some length about having had assorted hernias, some lasting damage to his ribs, pain in his left leg and some arthritis. He comments that when he does any paper work that he gets headaches. I have suggested that he check about getting some reading glasses and he acknowledges that this is necessary. He also complains about tinnitus (which could date back to damage caused from percussive explosions nearby during his military training). When his tinnitus is very bad, he claims that he becomes lightheaded and has some difficulties with balance. It is possible that he should be referred back to his GP in order to have his hearing assessed and to be checked for possible Menieres syndrome or similar condition." His conclusion was that he considered the following job options as being compatible with the appellant's education and work experience: Cable layer Storeman Parking attendant Garage attendant Pound attendant Meter reader (Electrical) Car groomer Cleaner Weed sprayer Caretaker. When that report was received the respondent referred the appellant to Dr P Friedman, a Rehabilitation Medicine Specialist and a duly authorised Work Capacity Medical Assessor. Dr Friedman was supplied with all the medical reports from the file, and the vocational assessments. He noted in the past medical history that in addition to the problem with his right fourth finger, he had problems with his ribs and had suffered a bilateral inguinal hernia. Dr Friedman noted in his report that he had discussed the basis of the Work Capacity Assessment Procedure with the appellant, and had discussed with him the various job options identified by the Occupational Assessor. He said that he reviewed each of the occupations by asking the appellant about his past work experience in the particular field, and whether he believed he could work 30 or more hours per week in the particular occupation. He said that if he did not believe that he could manage, Dr Friedman would ask what features of the job would cause trouble. Following that interview Dr Friedman certified that the appellant was capable of working 30 hours or more per week as a forecourt attendant (provided he did not have to fill gas cylinders), a parking attendant, and a meter reader. After the Branch Medical Advisor had considered the assessments the respondent notified the appellant on 17 March 1999 that as he had a capacity for work, his weekly compensations would cease from 17 June 1999. The appellant applied for a 5 review of that decision. However, the Review Officer upheld the respondent's primary decision. It is against that decision which the appellant now appeals. Ms Armstrong submitted that the principal concern was that the respondent had not properly adhered to the procedure set out in the Corporation's gazetted "Work Capacity Assessment Procedure (WCAP) Final Version". She was concerned that the rehabilitation plan had not been properly implemented because various suggestions and suggested referrals had not been properly undertaken. She submitted also that not sufficient emphasis had been placed on the fact that the appellant had lodged a claim with the respondent for a crush injury to his chest which restricted a lot of his movements. She submitted that the requirements of the WCAP Procedure are that they should be carried out in accordance with the principles of natural justice. Ms Armstrong submitted that the appellant had not been given a full opportunity to complete rehabilitation before the Work Capacity Procedure was commenced. Ms Scott submitted that there were no significant errors in the way in which the Procedure had been carried out. She submitted that every possible step had been taken towards rehabilitation and the provision of suitable alternative employment options. Ms Scott considered that while the appellant complained about the chest injury, it was accepted that a claim had been lodged in respect of that problem. However, she submitted that a number of the reports on the file referred to the chest injury, so that it could not be said that it had been overlooked in any way. The WCAP Procedure has become a vexed area for ACC claimants. As a result of a finding that an appellant has a capacity for work there follows a cessation of further entitlements of weekly income, which can be a serious matter. It is for that reason that the principles of natural justice must be observed. I consider that the respondent has endeavoured to fulfil its obligations to rehabilitate this appellant so far as it has been possible. Unfortunately some of the reports indicate a reluctance on the part of the appellant to give his full co-operation to the various procedures. Notwithstanding that, I do not consider that the respondent could have done more towards his rehabilitation, and that at the time it required him to undertake the WCAP Procedure all reasonable steps had been taken to assist him in obtaining employment. The Courts have held that the mere fact that some of the boxes in the WCAP form have not been ticked does not amount to a failure on the part of the respondent sufficient to invalidate the Procedure if the overall performance has been properly carried out. At the time the appellant was notified that the Procedure would commence, he received a letter of explanation as to how it would be done. It is quite clear that Mr Neser, the duly authorised and appointed Occupational Assessor, went to some trouble to explain to the appellant the nature of his assessment. It is noticeable from his additional comments that he was well aware of the problems about which the appellant complained, but made an assessment of the work which he considered the appellant's education and experience would enable him to carry out. A similar position applied to Dr Friedman, who was aware of the chest injury and the problems it provided, and took this into account in making his assessment. He stated that he had explained each of the job options identified by Mr Neser to the 6 appellant and sought his views as to what difficulties it might cause him if he attempted to do them. Following that discussion and his examination of the appellant he provided his assessment of the positions for which he considered the appellant could work for 30 hours or more per week. As the Court has stated in a number of similar appeals, both the respondent and the Court must accept the assessments of the vocational and medical assessors unless there is some very strong evidence which suggests that they are flawed. There is nothing before the Court which would lead me to such a conclusion in this case. | consider that the assessments were carried out in accordance with the Procedure, and the Court must accept them. The appeal is dismissed. DATED at WELLINGTON this (7 day of October 2000 Awmiddlela A W Middleton District Court Judge ai182-99.doc(aw)