Salmon v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2011] NZACC 30 UNDER The Accident Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. AI 440/09) BETWEEN P.AMELA SALMON Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 12 October 2010 Appearances: Mr P J Sara for appellant Mr C J Hlavac for respondent Judgment: 28 January 2011 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] The appellant has cover for a back injury from December 2003 which she suffered in a fall when pruning a tree. Surgery in January 2005 was not successful. She developed acute back pain with pain radiating down both her right and left thigh. She was eventually diagnosed with a persisting pain disorder with denervation of the left S1 nerve distribution. [2] Mrs Salmon had an L5/S1 laminectomy on 21 January 2005, but her symptoms did not improve. She felt that her symptoms were worse than they had been before the operation. [3] In March 2005, she prepared to start work for three hours a day as a purchasing officer at Otago University. Her workplace was adapted to meet her needs. By April 2005 she reported that she had worked daily from 8.40 am to 12.00 noon, and was attending a hydrotherapy rehabilitation programme after work hours. She found that she could not cope very well and could not complete assigned work. She signed up a "Plan of Action for Activity-based Programme" with the expected outcome of being fit for work for full hours and full duties. Mr Bruce Hodgson, orthopaedic surgeon, certified her fit to work four hours a day increasing to full time at the end of May 2005. By 19 May she was reported to be managing 25 hours per week. She was exhausted at night and at the end of the week. She was still attending the activity based programme. [4] Mr Hodgson reported on 3 June 2005 that Mrs Salmon would continue workng 25 hours a week for the next six weeks. He advised her to keep fit and active. His diagnosis was mild bulging of the L4/5 disc and a degree of stenosis at that level. Mrs Salmon was interviewed by her case manager, Andrea Moseley, and said that she understood the surgeon was concerned with her slow progress. She was frustrated by her slowness at work and at home, needing two crutches to walk outdoors and one crutch indoors. At a meeting with her general practitioner and her case manager on 27 June 2005, she was advised to limit her work to 25 hours a week for the next six months. She was reported as complying diligently with her her rehabilitation obligations. [5] In July, arrangements were made with her employer in the Pathology department at Otago Medical School, to review and limit her job tasks. Reports were also done for the Mercy Pain Service by Dr R H Acland, pain specialist, Jeni Blezard, clinical psychologist, and Tracy Hogarty, physiotherapist. The psychologist report noted: "Pamela stated that she does not really feel anxious about her pain even though it has worsened as has her mobility and level of function since her surgery. She has a good level of insight as to why this is the case, and does not feel that there is a 'question mark' over what is behind her pain and restricted mobility. Pain related anxiety scores were also low on the Mercy Pain Service General Pain Questionnaire. Consistent with the lack of pain related anxiety, Pamela does not believe that the presence of (or increases in) pain indicate that further damage is occurring. She accepts that the presence of on-going pain is part of her condition, and that this does not indicate pathology (e.g. it hurts for her to walk, but she believes that she needs to/wants to walk and essentially doing so is not causing any harm, so she is better off to walk than not). ... . .. As Pamela has continued to maintain a work role despite the presence of pain and considerable physical restriction, she has clearly demonstrated a willingness to work in the presence of pain. She does not have a problem with this (i.e. she does not hold the belief that she needs to be pain free in order to work), however, she is struggling somewhat to manage the amount of work she currently undertakes, and realises that perhaps reducing to half time may be better for her, allowing her more energy for other important aspects of her lifestyle and thus a better balance." The physiotherapist reported: "Pamela now works in the Pathology department for 25 hours per week. Her work hours are between 8:00 am and 1:00 pm. She is in charge of a storeroom and often uses a trolley to move items. She also has to ask for assistance with lifting heavier objects. Pamela feels that she struggles to manage her work duties and attend the activity-based programme. She finds that she becomes very tired. . . . She has been attending the activity- based exercise programme supervised by a physiotherapist immediately after work. She then goes home and rests for about 30 minutes. She walks for 30 minutes in the afternoon. Pam prepares and cooks the evening meal. She spends the evening watching TV and doing small chores such as laundry in preparation for work the next day. She retires to bed at 8:30 pm to rest. Pamela reports having difficulty fitting in activities such as grocery shopping as her afternoons are busy." [6] The reports continued to reflect Mrs Salmon's positive attitude and determination to continue working. Assessments [7] Dr Michael Kahan completed an initial medical assessment (IMA) on 1 December 2005. He reported that Mrs Salmon was suffering from a chronic regional pain syndrome after undergoing her L5/S1 laminectomy. She was currently working about 20 hours a week and was involved with various treatments, including acupuncture once a week and deep massage which she found helpful. She experienced low back pain with pain radiating over the iliac crest. She graded the pain as approximately 5-6 out of 10. She also had pain radiating down the left lateral thigh and calf, associated with numbness in the same distribution, as well as some numbness over the balls of her left foot. She had pain radiating down the lateral aspect of her right thigh down to the level of her knee, [8] Dr Kahan found Mrs Salmon able to work in a number of job types. The report did not state how many hours a week the assessment was based on. A GP medical certificate from Dr L Buchanan on 21 February 2006 certified her fit for only four hours a day, with no lifting and no excessive sitting or standing. [9] A work ready programme in June and July 2006 reported a satisfactory outcome working as an accounts office assistant. She worked for only 15 hours a week, being the hours available. No job was available at the particular workplace. She had a functional capacity evaluation. She reported that she did not think she could sustain 20 hours a week. [10] A vocational independence occupational assessment was done by Lynn Carty of Anne Potter and Associates on 12 March 2007. No issue is taken with the occupational assessment. [11] On 26 June 2007, Dr John Kerr completed a vocational independence medical assessment (VIMA). Some of the relevant comments in the report were as follows: "She can sit in the car when being driven for about 1 1/2 hours at a time but then is in a lot of pain. She can only manage an automatic vehicle, because of the loss of sensation in her left foot to depress the clutch. She can sit for about 30 to 45 minutes at a time. Likewise she can stand for about 20 to 30 minutes at a time. Her sleep is disturbed on account of pain and she is awake throughout the night intermittently She says she gets excessively tired and is unsure whether this is due to the Gabapentin, the disturbed sleep or the constancy of the pain. She has to have a lie down each day, towards the middle of the day. If she is not able to do this she says, that she is in extreme pain by about 4 pm. She goes to the gym three times a week to increase her core strength and likes to walk on a regular basis." . .. Summary: Pam sustained an injury to her lower back which resulted in an L5/S1 laminectomy. Post operatively there was in fact an exacerbation of pain. She has a diagnosis of a persisting pain disorder with denervation of the left S1 nerve distribution. ... Her main ongoing problems relate to her persisting pain and fatigue. It is unclear as to whether her fatigue relates to the disturbed sleep, the side effect from Gabapentin or the persistency of her pain. She is independent in her activities of normal daily living. She continues to exercise on a regular basis, including going to the gym three times per week. .. . I have reviewed with Pam the work options forwarded by Anne Potter. She would not sustain work activities which require prolonged sitting, standing or walking. She would be best suited to a position where she is able to vary her work postures. She would not manage work which required heavy lifting or repetitive bending or twisting or where she was in a constrained position for prolonged periods of time." [12] Following her receipt of the medical assessment from Dr Kerr, the appellant wrote a statement dated 29 July 2007 in which she made it clear that when she expressed agreement with Dr Kerr concerning her ability to perform job types this was not that she could do those job types for 30 hours or more a week. "When I was asked if I could manage to do a job and I answered 'yes' I did not understand that that meant I could manage 30 hours a week. I understood it was something I could still do for the limited hours my body would let me and the decision for me to be independent would be decided by all the reports that have been done in the past and Dr Kerr's assessment of my condition. I struggle to just do the normal household chores and if I do not get my rest (lying flat) in the middle of the day I am in so much pain by 4 o'clock that I cannot function at all. Some days the pain is very bad even with the rest but I try to do something to take my mind of it. This helps to some extent. I need large amounts of pain killers to just keep the pain at a level I can endure to survive but I still struggle with the pain and fatigue The fact that I cannot do a full days work frustrates me to the limit as I have always worked and had a very busy life. I would love to go back to full time work but know couldn't manage so have been applying for jobs of up to 20 hours a week which is all I can manage and have been endeavoring to get this job by applying for anything I think that would be suitable. The gym had gone a long way to keeping me mobile and without it I feel I would almost be in a wheelchair. We work on my core strength. The walking is also good for my general health and my mind as I could have got very depressed. It is also one of my ways of dealing with the pain. I just have to walk through the pain and on my return I always feel better mentally. I have tried to stay positive to the setback I have had. If I tried to work 30 hours a week I would have to give up both the walking and the gym both of which are still helping with any rehabilitation." [13] This was supported by a letter from her GP, Dr Cynthia Buchanan. Dr Buchanan believed that Mrs Salmon was not fit for more than 4 hours of work per day. Dr Kerr was asked to comment. He acknowledged that Mrs Salmon might not have comprehended that the assessment was for full time work. He accepted that she might not be able to maintain her exercise regime if she had full time work. Otherwise, he confirmed that he had interviewed Mrs Salmon on the basis of her ability to perform full time work, and he confirmed his assessment. [14] Mr Sara then wrote to Dr Kerr asking whether Mrs Salmon could maintain the required mental effort. Dr Kerr replied on 6 October 2008, noting: I am not now in receipt of the specific job option descriptions but understand from Mr Sara's letter that they detail a requirement for mental activities, organisational skills, problem solving, good cognitive functioning and communication skills. It is my opinion that the claimant was not significantly impaired in these skill areas. In addition, the job options that she has been assessed as having vocational independence for are of a light nature with some flexibility of movement available and an ability to self pace the required work tasks." [15] On 12 December 2007, ACC wrote to Mrs Salmon and confirmed that in their view, she was vocational independent for the following types of work: . Medical Laboratory Technician. . Life Science Technician. . Physical Science Technician. . Stock Clerk. . Information Clerk and Other Receptionist. [16] Mrs Salmon obtained work at Fecpak International as a Laboratory Technician, working up to 20 hours a week. Mr Sara sought an independent report from Dr Michael Anderson, a specialist physician in occupational medicine and consultant physician in pain management. In a report dated 15 May 2009, Dr Anderson explained the neurological processes involved in a persistent pain problem. He concluded that Dr Kerr's examination spanning 30 minutes was insufficient to obtain a proper history and examination of the appellant, and that Dr Kerr could not have given enough attention to the effects of the appellant's ongoing chronic pain. Dr Anderson's assessment took two hours, which he considered to be a typical time for a comprehensive pain assessment. He wrote: "The nature of a Persistent (Chronic) Pain Problem is that the neurological processes involved undergo a "wind up" phenomenon and the expectation is that the pain will increase in severity with time. This in turn disturbs sleep patterns and the increasing fatigue arising from this reduces the patient's ability to cope. The patient gets trapped in a negative spiral of increasing pain and fatigue. I have reviewed the report from Mercy Pain Service dated June 2005, and in this report Dr Acland commented 'I am impressed that she is able to work 25 hours a week'. (Page 4) However, Pamela is now only able to work 16 hours a week because of the increasing pain and associated fatigue. Unfortunately she has also stopped her physical fitness programs also due to the increasing pain and fatigue. This was entirely predictable as the system undergoes the 'wind up'. Appropriate medications can help to modify this, by reducing night pain, and allowing a better sleep pattern, and gradually improving the fatigue, as well as daytime pain. It must be stressed however, that this is 'Pain Management' only and that a 'cure' is not possible according to the current medical chronic pain model. An essential part of Persistent Pain Management is a regular aerobic exercise program - one of the few proven benefits - and Pamela is unable to include this as part of her management plan at present, due to the cumulative fatigue she is experiencing. If Pamela had had a simple medical problem, then 30 minutes could possibly have been adequate to obtain sufficient information to make a judgement on her ability to work 35 hours a week (or more). However, I find it extremely difficult to comprehend how, in the 30 minutes spent with Pamela (she says it was less that this), a doctor could elicit a full history and adequately examine her with respect to her complex ongoing medical condition, and have sufficient data to make an appropriate judgement on her ability to work any specified hours per week. However, he did rightly comment that 'She would not sustain work activities which require prolonged sitting, standing, or walking. She would be best suited to a position where she is able to vary her work postures. For Pam 'prolonged sitting, standing, or walking' is 30 minutes or less before significant exacerbation of her pain problem." [17] Dr Anderson stated that Mrs Salmon was managing her current work of 16 hours a week. He considered rehabilitation into any other type of occupation was absurd and bound to fail. It is important to note that Dr Anderson believed that Mrs Salmon could increase her hours, but with a limitation of 24 hours a week. He wrote: "I have sent a copy of my medical report to Pamela's GP and I am hopeful, that with appropriate adjustments of her medications, she may be able to slowly increase her hours towards the 20 - 24 hours that she previously attained. Implicit in any such improvement will be her ability to resume her regular aerobic exercise program." [18] Finally, in a letter of 1 July 2009, Dr Kerr commented on Dr Anderson's opinion and on the letter from Fecpak. He wrote: "These all detail that they do not in their opinion think that the claimant could sustain 30 hours of work per day because of issues of fatigue and pain. I understand that Dr Anderson assessed her for 2 hours which is his typical time allowed for such an appointment but it should be noted that this was for a 'Comprehensive pain assessment' and included detailed explanations regarding the nature of the condition as well as medications and treatment and not simply a determination of capacity for work. I have not had the opportunity to review the claimant since my report of 2007 so I am unable to comment as to whether there has been any change in her condition since that time and as such I am also unable to comment as to whether there has been any deterioration." [19] Mrs Salmon was working for Fecpak International. Her employer provided a letter of 6 April 2009 in support of her opposition to the vocational independence assessment: "... with my own observations I believe that it would be irresponsible for Pamela to return to full time work It is clear to see as a day progresses Pamela's energy levels drop, and her ability to keep up her concentration for the task at hand (processing and reading lab samples) deteriorates as the day goes by (as her pain develops). Pam is able to work a full day at the lab, however she is clearly in need of a rest by the time she finishes the day, and she is unable to return to work the next day following a full day's work. On the odd occasion where Pamela has helped us out and worked a full day or two we have both suffered, her physically and us with her inability to work further as the recovery time is long. Pamela is certainly not one to complain, in fact she is quite the opposite, however by afternoon tea time when she is working a full day, the pain she is experiencing can be seen. We work closely with Pamela to ensure that we vary her activities so that she has the required amount of standing, sitting and moving around the laboratory, however it would be very difficult for Pamela to use her crutches in such an environment and we work towards this not being required. I have absolutely no doubt that if Pamela was able to physically work full time at FECPAK, or in another position, she would gladly do so. Pamela has one of the strongest work ethics I have. ever seen and it is a credit to her determination that she is fighting every day in order to maintain a normal ano healthy lifestyle." [20] I have set the letter out in full. Although the employer's opinion may be regarded as advocacy, it is consistent with the reports and assessments that have been made of a pain condition that has not improved since 2003. It would be unfair not to regard it as a reasonable assessment of her abilty to work, from the point of view of an observer. Review [21] The reviewer thoroughly examined the medical and occupational reports and other material. In a decision dated 17 August 2009, she addressed the question whether there had been a deterioration between the times of Dr Kerr's report and Dr Anderson's opinion, and said: "However, what stands out for me in the evidence is the significant change in Mrs Salmon's physical activity between the times of the two assessments. Over the period of the vocational rehabilitation Mrs Salmon's hours of work had increased until by the time of her assessment by Dr Kerr she worked 20 hours a week. She was also undertaking significant physical activity including gym work, aqua jogging and walking. By the time of her assessment with Dr Anderson her work hours were still 20 a week but her other physical activities had reduced to walking about half an hour most days of the week. . With respect, therefore, to Dr Anderson's assessment, I find it difficult to accept Mrs Salmon's symptoms were the same in 2009 as in 2007. Further, Dr Anderson is a pain specialist who undertook a comprehensive pain assessment in 2009. Dr Kerr is a specialist occupational physician who assessed Mrs Salmon's vocational capacity. From my reading of his report and the previous medical evidence since Mrs Salmon's surgery, he did so considering Mrs Salmon's functional capacity and her pain and fatigue." Submissions [22] Mr Sara submitted that Dr Kerr's assessment was unsafe and unreliable. How the appellant is able to perform ten hours work more than she was ever able to achieve on a consistent basis is unexplained. Although Dr Kerr acknowledged that she would not be able to work full time and maintain her regime of physical exercise, he did not comment on Dr Anderson's opinion that she has to maintain exercise in order for her to manage her pain. He did not comment on other reports concerning her need for a healthy life balance. [23] Mr Sara submitted that pain and fatigue are real barriers to a person like the appellant ever achieving vocational independence. He submitted that the consequences could not be dismissed with the argument that she had pain counselling and could not benefit from any further treatment. [24] Concerning the substance of Dr Kerr's assessment, Mr Sara submitted that a mistaken view was taken of the appellant's ability to do her own housework, and that there was a clear misunderstanding of the fact that Dr Kerr wanted the claimant's comments about her ability to do full time work, whereas the appellant thought that her comments were limited to the work tasks. [25] Finally, Mr Sara submitted that Dr Anderson did not consider that there could have been a deterioration, and his assessment was substantially more thorough, thoughtful and sensible than the assessment adopted by the Corporation. [26] Mr Hlavac submitted that Dr Kerr reached conclusions with the benefit of all the relevant medical material and did not have to spend time with the appellant revising that information. He was able to record accurately what the appellant said about her pain and its effects in relation to physical activity, concentration and sleep pattern. She attended the assessment with a written summary of her limitations and Dr Kerr took that into account. [27] Mr Hlavac submitted that Dr Anderson's assessment is so far removed in time from that of Dr Kerr, that it provides very little assistance to the Court. It is conceivable that Mrs Salmon's condition and physical ability to perform the work types may have deteriorated since June of 2007. If that is so, then she can apply to ACC to be reassessed pursuant to Section 109 of the Act. Her remedy lies in reassessment, and not through attacking the original report of Dr Kerr. Decision [28] The assessment adopted by the Corporation was that the appellant could work for 25 hours per week in five sedentary occupations [29] There is no direct challenge to Dr Anderson's opinion that the appellant could not work more than about 20 hours per week when he assessed her in May 2009. Dr Kerr's assessment had been done in June 2007 and there is a significant difference in times of assessment. The respondent's position is that the difference between the two assessments is likely to have been partly due to deterioration and partly to a mere difference of opinion that would be insufficient on its own to unseat the vocational independence medical assessment. [30] The reviewer noted that the appellant's exercise hours had decreased by the time of Dr Anderson's assessment, suggesting that she was fit at the time of Dr Kerr's assessment for 24 hours work plus exercise, and would then have been fit for 35 hours work. [31] But there is no real evidence to suggest that the appellant's condition deteriorated after the time of Dr Kerr's assessment. She maintained that she adopted an exercise regime in order to maintain her core strength so that she could work. An important factor in this case is that the appellant has consistently been regarded as a person who is not inclined to exaggerate the effect of pain and who has at least given the appearance of working to her best capacity since the time of her injury. [32] Dr Kerr's assessment was the only view that the appellant could work full time. That may be explained by the appellant's presentation in a short half hour examination. There is no reason to doubt that she expressed confidence in being able to manage various kinds of work because she did not realise that the question being addressed was whether she could work full time. She had been adamant that she could not manage more than about 20 hours a week, but the medical assessment recorded her confidence in managing a number of jobs. Clearly there was a misunderstanding, and Dr Kerr agreed with that possibility in his reply to an enquiry. [33] Dr Anderson explained the process of pain increasing with severity over time, disturbing sleep patterns and increasing fatigue. He noted that Dr Acland had commented in June 2005 that he was surprised that she as able to work 25 hours a week. By the time of Dr Anderson's examination, he found that she could only work 16 hours a week. [34] Dr Anderson's report does reflect a deterioration, but that was a deterioration to a point of less aerobic exercise and a work capacity of only 16 hours a week. Even allowing for realistic margins of difference between practitioners, Dr Anderson's opinion in May 2009 cannot be reconciled with an ability to work 35 hours a week at the time of ACC's decision in December 2007. He considered that with regular aerobic exercise and suitable medication she could increase her hours to 20 to 24 hours per week. [35] I find that the appellant suffered an injury related chronic pain condition. Since her injury she has consistently worked to what she considers her maximum capacity, except when she could not get work. Her effort has been confirmed by her employers, medical practitioners and case managers. Dr Anderson has provided a satisfactory explanation for the limit of her ability to work no more than about 24 hours a week with accompanying aerobic exercise. [36] For those reasons, I find that the vocational independence medical assessment was in error in estimating that the appellant could work for 35 hours or more in any of the recommended jobs. [37] The appeal is allowed. The review decision is quashed and the Corporation's vocational independence assessment decision is set aside. [38] The appellant will have costs of $2,500 and reasonable disbursements. Judge D A Ongley District Court Judge