Kirkham v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 47 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 LYNDA ANN KIRKHAM of Eltham Appellant (Appeal No. Al 3/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent JUDGMENT OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from Mr G R Kirk, counsel for the appellant and from Mr C Richards, counsel for the respondent, with a request that I issue a decision on the papers. The issue on appeal is the respondent's decision, upheld by the Review Officer, that the appellant had a capacity for work pursuant to section 51 of the Accident Rehabilitation and Compensation Insurance Act 1992. On 28 November 1994 the appellant suffered a neck strain while working as a Caregiver for IHC and was transferring a patient from a wheelchair. It is accepted by both parties that the medical evidence establishes that the appellant now suffers fibromyalgia and that her physical limitations result from pain suffered as a consequence of that condition. This was confirmed by Dr P Foreman, a Clinical Director of the Auckland Regional Pain Service in a report issued on 16 April 1997. In that report Dr Foreman noted: "Mrs Kirkham appears to have a well-developed regional myofascial pain syndrome with overlying elements of a CRPS Type 1 (RSD) type disorder as evidenced by her complaints of tingling, burning pain and "blue hands"." He completed his report by stating "Mrs. Kirkham presents as a complex case of mixed myofascial and sympathetically maintained pain with more generalised symptoms indicative 2 of fibromyalgia, probably triggered as a result of her initial accident, and maintained by a number of perpetuating factors which should be addressed whilst continuing with physical treatments as above." When the claim was lodged with the respondent, it investigated the possibility that the appellant could return to her former job on light duties but no such duties were available. The appellant was then referred by the respondent to Tereina, a Vocational Guidance Agency. As a result of that referral, a CV was drafted and advice given on management of her pain problems. As a result of that assistance, the appellant was referred for computer training which required her to attend a pre-employment workshop where she received 36 hours of computer training. The respondent then referred the appellant to ECS Connections Limited which is a Job Search Agency who produced three job search reports with a final extensive vocational guidance report on 29 September 1998. Under the heading of "Barriers to Employment" the report states: "Lynda suffers from Fibromyalgia predominantly affecting her back from the cervical to lumbar region and her right arm. Her spinal x-rays have indicated a previous fracture of 2 lumbar vertebrae. She also reports numbness in the right leg with sciatic pain, severe headaches localised to the right side of her face and some degree of forgetfulness. At present Lynda takes 8 panadol per day for pain relief and tryptanol (muscle relaxant) at night. In terms of her capacity for work, Lynda advises that she frequently falls over during which time she may be incapacitated for 5 to 10 minutes. This seems to be more of a concern to those observing than to Lynda herself. If the employer was made aware of the situation and Lynda was not likely to cause harm to herself or others then this should not pose a problem to her employment. her sitting tolerance is limited from 20 to 30 minutes, at which time she needs a 5 to 10 minute standing break before she can resume sitting. This indicates the need for Lynda to have flexibility over her workplace situation and the ability to change her body position when required. Lynda finds driving long distances difficult due to the jolting movements of the car exacerbating her condition, making positions within the immediate locality of Eltham through to Stratford and Hawera more suitable. On "bad" days or during exacerbations of her symptoms, Lynda has advised that she requires bed rest. Cold weather also worsens her condition. Lynda is left handed and does not have difficult with writing or using a keyboard. She has stated that she enjoys computer work. Lynda is aware that her physical location in Eltham combined with her inability to drive long distances may affect her suitability for some positions. She currently has her house on the market and hopes to move to Hawera. Certainly relocating to Hawera will increase her options. Lynda is 50 years of age which can present a barrier to employment, but not always. The combination of all the above factors limits the options open to Lynda at the present time and it is highly recommended that she continue to pursue any suitable paid position with vigour." The report then goes on to list the appellant's transferable skills as: "Excellent customer service and personal assistance skills Strong relationship building and team work abilities Good organisation, administration and coordination skills Competent in budgeting, cash handling and till operation Proficient in computer, keyboard and telephone operations Experienced in animal care, welfare and management Ability to think and write creatively and imaginatively Experienced in sales, marketing and promotions Broad range of practical skills, abilities and experience" The final summary of that report states: "Lynda has a broad range of experience and is currently learning computer skills which will enhance her suitability for office and administration roles. She presents with a number of barriers which will require intensive job placement assistance. Given Lynda's interest in reading and writing, it is recommended that she complete the Information Access Course through the Open Polytechnic with the proviso that this only be undertaken when the likelihood of attaining a library position has been fully investigated and it will assist with her placement." Following that report the appellant was referred to Mr T Neser of the Sedgley Family Centre for a work capacity assessment procedure (WCAP). In his assessment, Mr Neser identified the following work option as being suitable for the appellant by reason of her experience, education and training: "Care Provider Social Worker (C.C.S) Receptionist Field Officer (Health Care Organisation) Co-ordinator (Community Organisation) Accounts Clerk Hotel Clerk IHC Worker Manager (Hotel or Motel) Matron (Hostel) Occupational Therapy Assistant Sales Assistant Teacher Aide Administration Telephone Sales" In his WCAP file form, Mr Neser considered that with the general skills the appellant had acquired over 26 years in the workforce, she had sufficient transferable skills to be able to return to the workforce in the areas he had nominated. Following receipt of Mr Neser's reports, the appellant was referred to Dr S Finnigan, an Accredited Medical Assessor for 4 the purpose of a medical assessment. In his report of 11 February 1999, Dr Finnigan again referred to the chronic pain syndrome affecting the appellant's right upper arm. While Mr Neser had identified possible job options, Dr Finnigan was of the opinion that there were four occupations for which the appellant was unsuitable, for injury related medical reasons, they being Care Provider, Social Worker, Occupational Therapy Assistant and IHC Caregiver. Of the remaining 11 job options for which Dr Finnigan considered the appellant medically suitable, he indicated that in respect of Receptionist, Accounts Clerk, Hotel/Motel Manager and Administrator, while being medically suitable, the appellant would require additional training. Dr Finnigan stated that the appellant was unwilling to undertake the jobs of Hostel Matron and Telephone Sales/ Marketing although he considered that there was no injury related medical reason why she should not be able to cope with those positions. Following receipt of Dr Finnigan's report, the respondent notified the appellant on 25 February 1999 that as it had been demonstrated that she had a capacity for work in accordance with section 51 of the Act, her entitlement to weekly compensation would cease as from three months from the date of that notification. The appellant applied for a review, which was unsuccessful. It is against that decision which the appellant now appeals Leave was granted to Mr Kirk to produce in evidence a report from Mr K J Moore, an Employment Consultant and a further report from Dr A D Furniss, the appellant's General Practitioner. The respondent was requested by the Court to provide a copy of a file memorandum referred to in the submissions and issued by Ms V Holtom, the appellant's Case Manager on 24 November 1999 The report from Dr Furniss confirmed that there had been no real improvement in the appellant's symptoms over the period from the date of the accident until his report of 21 August 1999 Mr Moore gave as his assessment: "From an employment perspective, Lynda will be very hard to place. Her physical limitations are such that any position requiring physical activities of even the lightest nature will be out of the question. Lifting, bending, stretching, sitting for extended periods or standing for extended periods are all out of the question. Lynda has no significant computer skills and can not drive, apart from down to the local shop." A file memorandum from Ms Holtom confirmed her recollection that the appellant had attended the respondent's New Plymouth branch office for the purpose of an extension of her rehabilitation plan on Friday 28 August 1998 at 11.30 when she was accompanied by a driver who had driven her from Eltham. Ms Holtom stated that at that time she discussed with the appellant her rehabilitation plan in which she stated that "Lynda agrees that after four months of the following there will be a review and understands she may be forwarded for WCAP assessment." Ms Holtom then stated that she recalled telephoning the appellant on 9 November 1998 requesting her to attend a further meeting for initial interview but was told because of the difficulty of travelling, the appellant preferred to discuss the process over the telephone. She said that the appellant had a full opportunity during the telephone interview to discuss all areas of the WCAP process. In his submissions, Mr Kirk has taken issue with the fact that the rehabilitation programme had not been properly treated before the WCAP process was commenced. 5 He submitted that the appellant's individual rehabilitation plan agreed to on 5 December 1997 was of a very limited nature and specific as vocational objectives "to achieve suitable employment within physical capabilities." He submitted that that vocational rehabilitation plan really contained no achievable objectives or measurable strategies. He further submitted that the appellant had not met with her Case Manager as required before instigating the WCAP procedure. He submitted that on the basis of the various assessments, the appellant had limited skills which were based purely on her experience in the workplace. Mr Kirk also raised doubts as to the expertise of both Mr Neser and Dr Finnigan to undertake their respective assessments. Mr Richards submitted that as it was clear that the appellant was unable to return to her previous occupation as a Caregiver and her rehabilitation was focussed on her return to work in a different position but for which her range of transferrable skills were applicable. He submitted that the question of retraining would only be considered if the circumstances necessitated further training in order to return to work but that this appellant already had a wide range of transferrable skills and therefore needed no further vocational training assistance. He submitted that the only indication against that submission was the report of Mr Moore who considered that the appellant had no useable transferrable skills. Mr Richards submitted that Mr Neser had the proper qualifications to be an Occupational Assessor and that Dr Finnigan was the respondent's approved Assessor for making medical assessments. The issue falls to be decided under sections 49 and 51 of the Act. Section 50 provides the procedure for the assessment of a capacity to work. The respondent is required to develop a procedure for assessment of the capacity for the work of persons covered by the Act and is required to publish in the Gazette the proposed procedure by which the capacity for work will be assessed. In this regard the respondent has carried out the requirement to publish its notification in the Gazette of the procedure which has been in force since 1 November 1997 and is incorporated in the booklet published by the respondent and known as "Work Capacity Assessment Procedure (WCAP) Final Version". I have been concerned in this appeal by the fact that the appellant has a serious continuing pain problem which affects every aspect of her life, including her work. It seems clear to me that while it is accepted that the appellant has had a broad range of experience, she has been in the workforce for most of her adult life until this accident. She is now aged 51. The experience, as outlined in the reports, has really been of a general nature and with no specific training. She has undertaken a beginner's course in computer work but as was indicated in the reports, that has been of a limited nature and certainly insufficient by itself to enable her to obtain a position in the workforce. I have made those observations because I am concerned that the procedure specified in the Act can create injustices. 6 Page 14 of the "WCAP" Final Version" sets out the requirement for the Occupational Assessor under the heading: "How will the occupational assessment work?" It then states: 'The occupational assessor includes as many jobs as possible in their assessment, and all occupations the claimant has the skills to do. Occupational assessors will have access to a number of tools to help them identify job options based on the claimant's skills. The options will not be limited if: a job is not available where the claimant lives; . the job is at a different earnings level from the pre-injury job; . the job is perceived to have a different level of status or prestige than the pre-injury job; and/or the claimant was working part-time or overtime at the time of injury." I have set out those requirements because I consider that their application to this appellant gives rise to an injustice which neither the respondent nor the Court has the ability to correct. While she has had 26 years experience in the work force, that experience has been in a relatively limited field. The injustice that I consider arises out of the procedure is that the appellant has serious physical limitations which limits both the nature of the work she could do, if it was available, while in addition, she lives in a small town with few work options and she cannot drive a car. However, those are factors which cannot be taken into account in assessing her capacity for work. I have mentioned this issue because I have heard a number of appeals in which a strict application of the guidelines creates what I consider to be an injustice. I would recommend to the respondent that it gives consideration to additional rehabilitation assistance for the appellant However, the Court cannot take the matter any further and once the WCAP procedures have been properly carried out the assessment then made must be accepted. I have expressed my concerns regarding this appellant's abilities but I do not consider that the respondent failed to properly carry out the procedures for the WCAP assessment. Accordingly, I must upheld the decision of the Review Officer and the appeal is dismissed. DATED at WELLINGTON this 27 rd day of March 2000 A W Middleton District Court Judge ai3-99.doc (nr)