Liddell v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 235 /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 JUDY LIDDELL of Wellington Appellant (Appeal No. Al 220/99) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WELLINGTON on the 18th day of May 2000 APPEARANCES/COUNSEL P J Zumbach for appellant M M Ahern for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the respondent was correct in its decision of 22 March 1999 that the appellant had a capacity to work. I have delayed the issue of this judgment because Ms Zumbach questioned the qualifications of the medical assessor. When details of his qualifications had been provided to counsel and I received submissions from Ms Zumbach that I should prefer the expertise of Dr J Keir Howard to that of the assessor, Dr B Christian, I was then prepared to issue my judgment. However, in the meantime, I had received a similar submission in relation to Dr Christian in the course of another appeal. As I thought the result of further investigations might also apply to the issue in this appeal, I have delayed the issue of this judgment but I am now satisfied that the additional concerns raised in that other appeal are not relevant to this appeal are that Dr Christian was a properly qualified medical assessor. 2 The background to the appeal is that the appellant sprained her cervical spine, neck and right knee when she slipped over on 7 August 1991. A claim for cover was accepted by the respondent. The respondent arranged for the appellant to attend the rehabilitation institute to address issues of pain management and physiotherapy for daily living. In May 1995 the appellant was referred for occupational therapy, evaluation and treatment. She also received assistance for pain management. In November 1995 the appellant was discharged from the rehabilitation institute, having completed only four sessions. However, the discharge was for the reason that she was then pregnant. In 1996 the respondent was diagnosed as having OOS and neck and shoulder pain. In January 1997 a vocational assessment was completed and a job plan prepared in which it was identified that the appellant was suitable for the position of a Purchasing Officer or an Administration Clerk. In a report of 28 April 1997 Dr B L J Treadwell, a Rheumatologist, diagnosed the appellant as suffering from overuse syndrome predominantly affecting the upper limb and mild in degree. His conclusion was: "She should be able to return to employment but she is not in a position to undertake any job which involves prolonged repetitive use of her hands and causes physical stress on the neck and shoulders. Keyboard use should be restricted to no more than one hour daily and she must be meticulous in observing micro-pauses when she is typing. Similarly she should practice micro-pauses when writing for long periods. She should always use a fat pen. She must be careful with her posture when sitting at a desk with the screen at eye level and elbow rests on her chair. These will relieve tension on the shoulder girdle muscles. She must maintain a good neck posture and avoid neck flexion as much as possible. She would be wise to start work on a part time basis and increase her hours gradually." In March 1997 the appellant signed a rehabilitation plan the goal of which was to obtain employment within her capacity and to be working full time by 6 March 1998. In May 1997 the respondent referred the appellant back to Stu MacAnn & Associates, for job placement assistance and to complete a CV. In June 1997 the appellant began a work trial with Richard Motorcycles, a business owned by he partner. The appellant commenced the trial working ten hours per week. A Functional Capacity Assessment in September 1999 recommended employment in a sedentary position with a slow increase in hours while attending physiotherapy. The respondent carried out a worksite assessment on 1 October 1997 with the result that ergonomic equipment was provided by the respondent to assist the appellant's return to work. By 1 December 1997 the appellant had increased her work hours to twelve hours per week and two months later had increased them to 15 hours per week. On 29 June 1998 a further Individual Rehabilitation Plan was completed with the goal of the appellant becoming independent of the respondent by 30 December 1998. The appellant was then referred to the "Back In Action" programme on 20 July 1998 3 with a view to facilitating a multi disciplinary approach to the appellant's rehabilitation. On 21 September 1998 the appellant had increased her working hours to 17.5 hours per week and by 7 December 1998 had increased them to 20 hours per week. In a discharge report on 30 December 1998 "Back In Action" considered that the appellant's then physical functional capacity indicated that she was fit for a gradual return to full time work in sedentary or light sedentary occupations. On 1 February 1999 the respondent's Branch Review Team recommended a referral to the Work Capacity Assessment Procedure as it considered the rehabilitation plan had been completed. The appellant was then referred to S MacAnn, an Occupational Assessor, whose report of 18 February 1999 identified the following job options as being within the appellant's skills, having regard to her training, education and experience. The jobs identified were: Purchasing officer Administration officer . . Credit controller Account administrator Finance controller Small business accounts controller Receptionist Personal assistant Bank teller Call dispatcher Property manager ie, secondary schools" The appellant was then referred to Dr Christian, a duly authorised Medical Assessor, for the purpose of a medical assessment. In his report of 16 March 1999 Dr Christian set out the documentation to which he had been referred and reported on his examination of the appellant. He then listed the options which had been identified by S MacAnn and gave his recommendation, being: Accounts administrator - not fit (prolonged repetitive work) Bank teller - not fit (prolonged repetitive movements) Call dispatcher - not fit (prolonged repetitive movements) Credit controller - not fit (prolonged repetitive movements) Personal assistant - not fit (prolonged repetitive movements) Small business accounts - not fit (prolonged repetitive movements) Administrator officer - fit for varied role not to include a largely typist role Financial controller - fit for varied role not to include a largely typist role Property manager schools - fit Receptionist - fit for varied role not to include a largely typist role Purchasing officer - fit in a role where Judy could be visiting suppliers, Branches etc" Dr Christian concluded his report by saying "I have discussed my recommendations for the list job options with the claimant. We have discussed the nature of each job and the tasks which would be required." On 22 March 1999 the respondent advised the appellant that as she had been assessed as having a capacity to work, further entitlements to weekly compensation would cease at the expiration of three months from the date of that letter. The appellant applied for a review of that decision. In support of her application for review the appellant submitted a report from Dr Keir Howard, a Consultant in Occupational and Rehabilitation Medicine, which is dated 17 June 1999. Dr Keir Howard concluded his report: "In my opinion, Mrs Liddell remains unfit for full-time work. She told me that in the relatively relaxed situation in which she is working for her partner, she can only just cope with 20 hours per week and frequently has to adjust her hours - some days being able to undertake slightly more and other days less and her starting and finishing times vary according to the way she is feeling. I see no reason to disbeliever her statements and I also would judge, from the extent of generalised soft tissue tenderness, that any extensive work involving the upper limbs would rapidly induce muscle pain and prevent her from continuing. I would judge, therefore, that she has a reasonable case for asking for a review of the decision that was made on the basis of the work capacity assessment and I would query her current ability to cope with 30 or more hours/week on a regular basis in administrative type work. I consider that the major problem is essentially something approaching a regional pain syndrome and I think that the approach needs to be geared towards the psychological dimension of pain and she will probably benefit from some further relaxation and cognitive therapy as well as an aerobic exercise programme which frequently helps in reducing neurogenic pain. I note that she has found amitriptyline unsatisfactory and it might be worth trying nortriptyline or one of the other tricyclic antidepressants with a less sedative effect. I think it would also be useful to try her with a small dose of phenytoin in association with the tricyclic, say 50mg at night perhaps increasing to 100mg if there was no response. This frequently helps to reduce neurogenic pain, although one will need to be on the watch for any side effects and in particular any changes in her liver function. In brief, I believe Mrs Liddell has a reasonable case to request a review of the decision made in the work capacity assessment that she is currently fit for full-time employment. In my opinion, she remains unfit for this, although I believe she is undoubtedly fit for part-time employment and I would consider that a reassessment in 6 to 12 months would be appropriate, particularly should there be a good response to the treatment regime that I have suggested." The respondent sought further information. As a result a report was received from "Back In Action" dated 28 July 1999 in which the Occupational Physiologist, Mr R Trendle, noted: "I believe that the Back in Action programme designed to address Judy's injury and her functional limitations was sufficient to increase Judy's capacity to allow a graduated return to 30 hours per week of work 5 (depending on the type of work undertaken). It was also noted throughout the programme that Judy's commitment to her family would be influential in her ability to reach 30 hours of work per week. Judy was provided with an independent, home based programme and an appointment was made to track her progress. The independent programme continued to address both cardiorespiratory function and muscle strength. Judy's commitment to the independent exercise programme would have realised a continued improvement in her level of function. In regards to Dr Keir Howard's report dated 17 June 1999, and with reference to the discharge report, I feel that an appropriate aerobic training programme and an appropriate strength/work conditioning programme has been made available to Judy, both during the programme and in her structured independent programme." Dr Keir Howard's report was also referred to Dr Christian for his comment which he gave on 22 July 1999. Dr Christian stated: "Probably the first thing to say is that it is apparent that Dr Howard did not have access to the Work Capacity assessment report. This is unfortunate, as a number of his comments are incorrect about the report, particularly when he mentions that I stated Judy was not to do 'more than 20 minutes typing or writing per day'. I agree with him that this would be 'strange advice', had I in fact given it! Also, he states that the jobs that Judy was fit for 'were all administrative jobs'. This is incorrect. The Property Manager of Schools job for instance involves assessing properties and contracting for property maintenance work, and not large amounts of repetitive work. (Repetitive work is not mentioned on the WCAP6 from the Occupational Assessor at all). From reading Dr Howard's report it is clear that he is stating that Judy is unfit for work solely on the basis of increased pain, not increased risk of damage or injury. He then goes on to say that Judy's diagnosis is 'something approaching a regional pain syndrome', ie implying that there is no actual injury at all, which I agree with. It should be noted that part of the treatment for pain syndromes is normalizing' life as much as possible, and helping the person to learn to cope with the pain rather than expecting a 'fix'. Part of this treatment is achieving a return to work. The basis of the ACC Work Capacity assessment is determining whether the job options would be expected to lead to damage or injury, not increased pain. Increased pain alone is not a reason to state that someone is unfit for work. Indeed, in someone with a pain syndrome an increased in pain initially is usual when returning to work. 6 I agree with Dr Howard that 'any extensive work involving the upper limbs would rapidly induce muscle pain'. For that reason I excluded all the job options in which a great deal of repetitive movements would be expected. I admit that this was not strictly according to ACC Work Capacity assessment criteria, ie these jobs would not be likely to lead to any injury or damage, but rather out of a common sense approach that Judy would not be likely to manage them at all. To answer your questions: 1. The rehabilitation and treatment that Judy has received is sufficient for her to have a work capacity in the job options specified. 2. The pain management and relaxation techniques that Judy learnt from the Back in Action Programme, which included a Psychologist, was the correct approach in helping Judy with her pain. Judy states that she found this beneficial. I am unsure why Dr Howard feels this should be repeated, as it unrealistic to expect that any such course will lead to a complete resolution of symptoms. 3. My assessing of Judy's capacity to work, under the Work Capacity assessment criteria, was based on assessing the risk of physical damage or injury from the job tasks listed. I did not base it on the fact that she is doing a 20 hour per week job and looking after 2 small children, so cannot really answer this question." A further report from a Clinical Psychologist, K Cunningham on 23 July 1999 notes: "There was a limited amount of work available for her to do at her husband's business (i.e., maximum of approximately 20 hours per week) and naturally this caused somewhat of a dilemma, in terms of having to find other work to progress into full-time work. Some of the counselling time was looking at Judy's perspective on how she might feel/manage with an eventual move into more full-time hours and how this would affect her management of her other responsibilities (i.e., care of children). Some time was also spent addressing areas of low confidence concerning entering work places other than her current one. . .. I feel Judy has been provided with sufficient strategies and counselling to address the main issues relating to dealing with a chronic injury, and the effects of being off work for a long time, and then making a transition back into the workforce. Parenting responsibilities can of course complicate, or make more difficult, such a transition." 7 The reports from Ms Cunningham, Mr Trendle and Dr Christian were then referred by the appellant's advisors to Dr Keir Howard for his further comments which was given on 15 September 1999 and states: "You will recall that I saw Mrs Liddell at the request of her general practitioner and did not have copies of either the work capacity assessment or the physiotherapy programme. Judging from the referral letter, the general practitioner did not have copies of these documents either, and she sent me all that she had, which was a rather dated report from Dr Blair Treadwell. All the up to date documentation that ACC had received relating to Mrs Liddell should have been copied to her doctor and I think it unfortunate that the general practitioner seemed to be operating somewhat in the dark. However, Dr Christian's comments are justified in that I misunderstood his recommendations. Having said that, it is worth making the point that my own recommendation was for a period of further rehabilitation and a reassessment in six months time or so. The question of fitness for work is not simply a matter of considering whether the work will lead to further injury, but also of judging whether a person is capable of completing a normal work output in his/her present condition. It was my judgment at the time of the consultation with Mrs Liddell that she was not able to complete a normal full day of work, although I judged her capable of part time work. In my opinion, it would be more appropriate to increase her hours on a gradual basis with ongoing rehabilitation support, so that she would hopefully be able to undertake full time duties within a reasonable time. The practical obstacle could be the fact that full time work may not be available to her in her partner's firm, but this is a separate issue from the medical problems surrounding her condition. I would also agree that in my opinion, the issue of pain represents the major factor in delaying Mrs Liddell's return to full time employment. However, in saying that a person suffers from a 'pain syndrome' does not indicate automatically that there is no underlying pathology, which is what Or Christian seems to imply. I would agree that in many cases these conditions represent a form of 'abnormal illness behaviour' (hence the need for psychological methods of treatment), but they have arisen from some initial pathology and their persistence requires ongoing treatment. I would also agree that the aim of treatment is, in most cases, to develop appropriate pain management strategies - my point was simply that I did not consider that Mrs Liddell had reached the point of being able to cope with her problem to the extent that she could work full time at this stage in the process." The Review Officer upheld the respondent's decision that the appellant had a capacity for work. It is against that decision which the appellant now appeals. Ms Zumbach was given leave to adduce a letter from the appellant's employer which is dated 7 November 1999 and has set out the hours worked by the appellant up to 7 December 1998. The letter sets out the nature of the duties which involves pricing orders by telephone and fax, pricing enquiries and pricing and displaying stock as it arrives. In addition, she does shop cleaning, sweeping floor, emptying rubbish bins and cleaning toilet, handbasins and dusting stock. She also serves at the counter 8 and answers telephone enquiries and is involved in reconciling the accounts and completing various reconciliations, including the GST returns. The letter states that most of the activities "are easily within Judy's ability except when she is having a particularly bad day due to a sore neck/and headaches." The letter further states that her limitations become apparent when she needs to sit and write for longer than a half hour at a time. The letter concludes: "If Judy was able to cope, there still is a number of tasks requiring her attention. Most of this is computer work, inputting monthly expenditure onto our analysis sheet, which could be another approximately 4 hours a week, and there always is an overflow of work that never quite gets caught up with, which I can see can account for a further 4 hours per week. So I feel I have been able to offer Judy 30 hours a week." Ms Zumbach submitted: 1. That in reliance on the decision in Grimstone (246/99), the appellant through rehabilitation had only achieved a milestone rather than obtaining a goal of being able to work 30 hours per week. That the appellant had been referred for the Work Capacity Assessment Procedure in January 1999 when she was then only working 20 hours per week. 2. That on the basis of Dr Keir Howard's report the appellant is currently not able to work 30 hours per week. 3 . That the recommendations of the Occupational Assessor are contrary to natural justice on the grounds that they are based on the incorrect understanding of the positions. That Dr Christian has recommended positions which have such limitations and restrictions attached to them by Dr Christian as to indicate the recommendations. That an ability to do part of a job is not an ability to do the job. 4. That the Court should treat Dr Christian's recommendations with caution and give greater weight to those of Dr Keir Howard's who has a much greater experience in vocational medicine. Ms Ahern submitted: 1. That the object of the assessments of capacity for work is to determine whether or not a person has a capacity for work as a result of experience, education or training. 2. That while the appellant was not then working 30 hours per week at the time she was referred to the Work Capacity Assessment Procedure, she had in fact completed her vocational rehabilitation. That while the goal of rehabilitation was that the appellant should have obtained a capacity to work for 30 hours a week and to be independent of the respondent, that was expressed as a goal only. The intention was that the appellant was to work towards that goal but not necessarily achieve it before referral to the Work Capacity Assessment Procedure. 9 3. That the letter submitted in support of the appeal from the appellant's employer is in contrast to what the appellant must have told Ms Cunningham that there were not more than 20 hours of work available to her at her place of employment. 4. That both the occupational assessment and the medical assessment were properly carried out in accordance with the requirements of the procedure. While it is acknowledged that the Court has held in Harris (74/99) that the Work Capacity Assessment Procedure is a code, it must be adhered to, I do not accept Ms Zumbach's submission that the procedure was commenced before the respondent had provided suitable vocational rehabilitation. While rehabilitation programmes expressed the goal which it was hoped to achieve, the Court has accepted that once all steps towards vocational and rehabilitation assistance have been given and no further assistance is likely to achieve additional results, it then becomes irrelevant that the Work Capacity Assessment Procedure takes place. In the case of this appellant Dr Treadwell had certified that the appellant had reached the stage where no further medical assistance needed to be provided but the respondent had sought to assist the appellant by referring her for rehabilitation assistance from "Back In Action" and psychology interventions from Ms Cunningham to assist her to deal with the symptoms arising from her injury. These various activities demonstrated that the appellant was learning to cope with her problem and she was gradually improving her hours of work. It is quite clear from the medical reports that she does have limitations, in particular, with regard to repetitive work. When the appellant was referred to Mr MacAnn for vocational assessment, that assessment was done having regard to the appellant's education, training, work experience and transferable skills. Under the section regarding the job options, Mr MacAnn had noted that in most of the options suggested the appellant had had experience. As a result of that and discussions with the appellant, Mr MacAnn was able to identify the positions which he considered were within the appellant's experience and for which she had the necessary transferable skills. That information was then passed to Dr Christian, together with all the necessary medical reports from which he was able to make his assessment of the appellant's capacity to carry out the various nominated job options, having regard to her symptoms. He was then able to identify the jobs for which he considered she had the capacity to work for 30 hours or more per week. While the first report from Dr Keir Howard is noted that his opinion was that "Mrs Liddell remains unfit for full-time work" (my emphasis), he then went on to report the complaints and considered that he "would query her current ability to cope with 30 or more hours/week on a regular basis in administrative type work." Dr Keir Howard then clarified his earlier report, having been made aware of the true background to the appellant's problems which had not been made available to him in his earlier report. In his second report of 15 September 1999, Dr Keir Howard's emphasis is on the possibility of an increase in pain brought about by increased hours of work whereas the emphasis on the Work Capacity Assessment Procedure 10 is to determine whether the proposed job options could be expected to lead to damage or injury rather than increased pain. In contrast, Dr Christian considers that the treatment and rehabilitation provided to the appellant has been sufficient to enable her to have a capacity to work in the job options which he identified. I am also satisfied that there was no breach of natural justice because both assessors indicated that they had discussed the various work options with the appellant. I am satisfied by the various reports on the file from "Back In Action" and from Ms Cunningham that the respondent provided the correct approach to assist the appellant with the management of her pain which it appears the appellant herself considers to have been beneficial. I am further strengthened in my view that all possible assistance has been given by the fact that after Dr Keir Howard became aware of the full background of the services provided to the appellant, he concluded that it was appropriate for the appellant to increase her hours of work on a gradual basis "so that she would hopefully be able to undertake full time duties within a reasonable time." I consider that that latter suggestion demonstrates that both Dr Keir Howard and Dr Christian are very close in their assessments While Dr Keir Howard originally thought 20 hours per week may be a maximum and Or Christian thought 30 hours per week were within the appellant's capacity, Dr Keir Howard was prepared to take that further step in his report of 15 September 1999 after he became aware of the full background which had enable Dr Christian to make his assessment. I note Ms Zumbach's submission that Dr Keir Howard has had far greater experience in this field than Dr Christian but the fact is that in the ultimate their assessments are extremely close. The Court has held in many decisions in relation to this issue that unless there is a serious divergence of opinions between properly accredited assessors then the Court must accept the assessments of the duly appointed assessor. I do not consider that there is a great variation in the final opinions of Drs Keir Howard and Christian and accordingly I consider that the decision of the Review Officer must be upheld. The appeal is dismissed. DATED at WELLINGTON this 7th day of September 2000 A W Middleton District Court Judge ai220-99.doc (nr)