Darwin v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2016] NZACC 45 ACR 162/12 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN PENNY DARWIN Appellant AND ACCIDENT COMPENSATI CORPORATION Respondent Hearing: 19 February 2016 Appearances: J R Miller for the appellant S Hack for the respondent Judgment: 29 February 2016 RESERVED JUDGMENT OF JUDGE A N MACLEAN [1] This appeal is primarily focused on conflicting vocational independence medical assessments, in the context of a granted treatment injury cover for right sided total hearing loss for the appellant, who had been a secondary school teacher. [2] It is not necessary to go into the background detail of the reason for her deafness, save to note that the problems go back a long way, to November 1997. [3] There were a considerable number of problems which arose, as she was treated for sinusitis and middle ear problems, culminating in an acute admission to the Emergency Department of Wellington Hospital in late October 2005, displaying acute anxiety in relation to her head and acute hearing loss. [4] In November 2005, a claim was lodged for a treatment injury, linked with over prescription of Sofradex drops that led to total right sided hearing loss. The respondent granted treatment injury cover for that in June 2006. [5] As well as the total right sided hearing loss the appellant has suffered for some time with other difficulties in her left ear, and regularly recurring infection issues. [6] . By March 2007 the appellant's general practitioner certified that she was unfit for her pre-existing work as a teacher noting particularly problems with directional hearing and high noise levels and a need for alternative occupation with consequential retraining. [7] Various retraining programmes were explored, leading eventually to the vocational independence process commencing in October 2008 with an initial medical assessment (IMA) report by Dr David Waite, occupational doctor, regarding working capacity. [8] Dr Waite in that report noted amongst other things: Penelope is very open in admitting the major distress that this sequence of events has produced. She described last year as being utterly distraught ... his distress is raised in her notes from the Karori Medical Centre. The distress was highlighted in a visit to the Emergency Department on 22 October 2005. Comment is made of severe anxiety and anxious that there may be something wrong inside her head. Mention was made at the time of sleep disturbance and tearfulness. 9] Dr Waite determined, that after assistance in coping with group situations and/or ergonomic changes were made, that the appellant could medically sustain 14 work types, including her pre-injury role of secondary school teacher. [10] She continued to be certified by her general practitioner as unfit to return throughout 2009. During that period there were some signs of improvements in some areas but not in others. In particular infection issues continued. [11] However, by 20 April 2010, the appellant's general practitioner, while stating she was still unfit for pre-injury employment, considered she did have the capacity to work in other types of employment noting that she "has been training as a library course" [12] On 18 June 2010, the appellant underwent a vocational independence occupational assessment (VIOA) which identified 13 appropriate roles, although a number of them required registration as a teacher. [13] There is no need to further comment on the VIOA because that is not the focus of attention in this appeal. Vocational Independence Medical Assessment (VIMA) [14] On 12 November 2010, Dr Antoniadis assessed the appellant for vocational independence. Key extracts from his VIMA include: Based on a nominal date of injury of 12 October 2005, he saw her on 12 November 2010. He noted that she had been a secondary school teacher for approximately four years prior to the sudden onset of deafness in the right ear. He noted the history of problems with sinusitis, asthma, use of antibiotics, ear discharge problems, including chronic otitis media and recurrent left middle ear infections. He noted the link with the antibiotic Sofradex. He also noted the admission on 29 October 2005 to the Emergency Department and the eventual acceptance of cover with a total loss of hearing in the right ear, but also directional hearing loss and problems with her left ear which were creating classroom difficulties. He noted Dr Waite's initial medical assessment, and the reference to major distress and a history of severe anxiety, sleep disturbance and tearfulness, albeit that at the time of the IMA there was no sleep disturbance and no depressive symptoms. He noted that the appellant had undertaken some computer studies but had not completed them because it became "too technical" and that she had completed library information study through the Open Polytechnic in October 2010 but that she did not see that as the right direction for her, having a stronger interest in data based management, in a school setting. He reviewed her current symptoms in relation to nasal and ear issues observing: She has no limitations with regard to her physical activities with either sitting, walking or standing or with driving. There are no problems with sleeping. She feels her mood is stable and does not describe depression at present. He described her family situation and a previous very active life that that was substantially in the past, although she was volunteering time with her daughter in artistic gymnastics and had assisted with fund raising at a club. Specifically he noted: There was no clinical evidence of depression or of any abnormal illness behaviour. He opined: At this time she does not require any further specific treatment in relation to her ears apart from the ongoing supportive service from her general practitioner ... I do not feel that she requires any further psychological input. Notwithstanding the IMA job type recommendations, he considered that she was unsuited to employment in a noisy work environment and so sifted out from the IMA recommendations those of secondary, primary and intermediate school teacher but left in polytechnic teacher non trades, plus work as a special needs teacher, work as a private tutor and teacher, work as a policy analyst, as a programme or project administrator, work as a library assistant, or as a conference or event organiser, work as a community worker, as a disability services officer and work as a youth worker. He noted that it was only the polytechnic teacher work that the appellant expressed any interest in but that for the others she considered that she did not have the necessary skills. [15] Consequential upon that VIMA, the respondent advised the appellant on 3 December 2010, that it had determined she had vocational independence in the 10 work areas recommended by Dr Antoniadis, with the consequence that her weekly compensation payments would cease, but any necessary medical treatment could continue. [16] For completeness, but not relevant to this appeal, a separate treatment injury claim in relation to infections was declined and that was not pursued. [17] Just over one year after the VIMA of Dr Antoniadis, the appellant was examined on 29 November 2011 by Dr Berry, occupational doctor. The conclusion of his report was to disagree with the assessment of Dr Antoniadis. [18] Key extracts from his report include: Generally the history of sinusitis, infections and other related problem noted by Dr Antoniadis was accepted. He too, noted the 2005 hospital admission. He noted in particular, that as a teacher of year 10 pupils at secondary school in 2005/2006, she found it impossible to control her class particularly if there was background noise. There were also directional hearing problems as to where sound was coming from so she began to lose confidence in her ability to teach, increasing her anxiety in that area, and also beyond the classroom with an avoidance of social situations and activities in general. He noted, she stopped work in 2006 and had never returned. He considered that she had been psychologically affected by her hearing loss resulting in significant anxiety and major loss of confidence and while she had sought some form of tranquiliser assistance from her GP, had never been given any such medication. He noted that she had done two papers in Bachelor of Information Technology but did not progress once the papers started to get into programming and technical aspects and she had difficulty concentrating. Also that she started library studies, but did not complete any qualification. He noted volunteer work with clubs her children were involved with including managing website development and fundraising, but that she continued to avoid crowds and social contact with self described irritability. He noted specifically: In terms of her mental health she continues to feel frustrated and annoyed with her continued hearing problems. There is an ongoing loss of confidence, she is demotivated, feels stressed and feels anxious and continues to avoid social situations and especially crowds and she is often tearful. She does not like meeting new people and finds contact with the public very stressful. In the examination portion of his report he said: Her mental state was largely normal today without strong signs of major depression but she did become tearful at times while taking the history and when discussing some of the effects of her injury and the events that occurred in her medical history. She was also very pessimistic and negative in regards to her abilities and lifestyle indicating "anhedonia" (a symptom of major depressive order in the form of a loss of interest in previously rewarding or enjoyable activities). As a result of her hearing loss she has suffered high levels of anxiety, decreased confidence, social withdrawal, low mood and low motivation and these symptoms are most accurately diagnosed as depression. These diagnoses do affect Mrs Darwin's ability to work full time via the direct effects of her hearing and also the psychological consequences of decreased confidence, motivation and irritability when dealing with people. Mrs Darwin's psychological reaction to her impaired hearing has been noted throughout the years and at no stage has it been appropriately managed and so now she has ingrained loss of confidence and avoids interpersonal contacts whenever possible unless it is with people that she knows well. This therefore has an impact on her ability to work in any role where there is interpersonal contact and dealing with members of the public or customers. It also has an impact on her ability to teach as she does not feel that she is able to communicate adequately with her pupils either in class or other situations. As well as this anxiety, depression and low confidence impairs a person's ability to make decisions. Decisionmaking ability is critical in many jobs and so this impairment adds considerably to Mrs Darwin's inability to perform adequately in a number of jobs. My opinion therefore differs from Dr Antoniadis in that I consider her impairment extends beyond having difficulties in the classroom or an environment with a lot of background noise. I also differ in my opinion in that I consider it very important that Mrs Darwin have psychological assistance to help with her adjusting to her hearing impairment and if she is found to be significantly depressed she may require medication to assist in this regard also. Because of this it is my opinion that Mrs Darwin has not yet completed her rehabilitation as she would likely obtain significant improvement in her work capacity if she were to have appropriate psychological and possibly also psychiatric input. He concluded that none of the job types identified by Dr Antoniadis therefore were sustainable. [19] Some months later Dr Antoniadis responded to the report from Dr Berry and in a letter of 4 February 2012, included the following: I reviewed the medical records supplied to me at that time, considered her history and the difficulties she was having then and also my clinical examination findings before making my conclusions known to her. At that time did not feel that she did require any specific treatment in relation to her ears apart from the ongoing support she was receiving from her general practitioner. I also did not feel that she required any psychological input as at the time of my assessment there was no clinical evidence to suggest any depression or anxiety. At that time she was involved in volunteer work with her daughter's artistic gymnastics as well as fundraising at the club. She was not describing psychological symptoms which appear to affect her day to day functioning at that time. I did not feel she was suited to work in a noisy environment and in particular an environment that exposed her to multi-directional noise. On reviewing the report from Dr Berry there appeared to be a considerable discrepancy between her psychological state when I saw her to the presentation to him a year later. I note from ... Dr Berry's report his diagnosis of depression with associated anxiety, decreased confidence, social withdrawal, low mood and low motivation. However this was not apparent during my assessment and on my questioning/clinical examination of her in November 2010. Therefore at the time I did not feel she required psychological input. At the time of my assessment there were no features of psychological disturbance that would impact significantly on her day to day functioning either in a work or non work environment; however from Dr Berry's report it would appear that Mrs Darwin's condition has markedly deteriorated ... I am not aware of the reason for this deterioration. I would agree with Dr Berry that roles that require a high level of cognitive function would be difficult for her to sustain on a full time basis until her psychological condition has been effectively managed. He noted Dr Berry's disagreement with the distinction that he made between the noisy classroom environment of primary, secondary, intermediate schools on the one hand, as opposed to the work environment of a polytech non trades private tutor etc in terms of noise and distraction, but did not accept Dr Berry's view that the exposures in the two work environments were similar. The Case for the Appellant 20] The appellant's submission is essentially, not that Dr Antoniadis's VIMA is inherently flawed, but in various subtle ways Dr Berry's report represents a more thorough, and informative assessment, of the true state of the appellant, in terms of her capability to work, and should be preferred. [21] It is common ground between counsel, that the principles applicable to resolving a dispute such as arise in this case are, as set out in Martin v ACC namely, that the Court needs to consider the totality of the evidence, and decide if it is satisfied the claimant is vocationally independent, with the medical assessor's opinion given no pre-eminence solely because of its statutory basis. [22] The Court in Martin, made it clear that in making a balanced assessment, factors such as the extent and relevance of the practitioner's qualifications and experience, the comprehensiveness of the evidence gathered, the quality of the report, where the preponderante of opinion lies and the validity of criticism of other medical opinions will all be relevant. [23] In essence the appellant's position is that Dr Antoniadis has made a "leap to working capacity without sufficient discussion of consistent medical evidence of longstanding difficulties", in this case the psychological ramifications of a long history of significant problems. [24] The appellant referred to the recent case of Stanley v ACC, where the Court was critical of a VIMA describing it as "perfunctory discussion" and showing a "formulaic approach to work type". [25] The background to Stanley reveals that the Court felt that the VIMA had not adequately engaged with previous reports in the form of an IMA and other psychological reports, in the years prior to the VIMA, which is different from the present case. The Case for the Respondent 26] The position of the respondent, is that it needs to be borne in mind that there was a gap of over a year between the VIMA of Dr Antoniadis and the report of [2009] 3 NZLR 701 N [2015] NZACC Or Berry so that the classic "snapshot in time" concept as outlined in cases such as Bonderenko , Park , Marsh and Hood comes into consideration. [27] The submission is, that rather than being "perfunctory" in the sense that the Court found the VIMA in Stanley to be, Dr Antoniadis was simply dealing with the information he had to that stage and it could well be, that as Dr Antoniadis noted, the situation had changed markedly by a year later. [28] The respondent also submits, that much of what Dr Berry sets out is based on self assessment by the appellant, and points to the fact that Dr Berry himself described her mental state as largely normal, without strong signs of major depression, albeit that he noticed that she did become tearful at times. In effect, that Dr Berry jumped to a diagnosis of depression, inconsistent with his earlier observation. In particular, that self described conditions such as "decreased confidence" "motivation" and "irritability" in dealing with people, are not medical issues as such, but more personality modulated issues. [29] Further, that it is difficult to understand how the appellant's self reported issue with crowds, would be a problem for a work type such as a policy analyst or project administrator. [30] As to the proposition advanced for the appellant, that Dr Antoniadis, in effect, did not ask the right questions, nor go into the level of detail about background psychological factors such as Dr Berry did, there simply were not the triggers to further explore those issues, existing on the day he examined her. Analysis and Discussion [31] As noted earlier, the task for the Court is to be make a balanced assessment of the situation based on the criteria set out in Martin. Although the Court has no detail [2005] NZACC 173 [2004] NZACC 32 (2005] NZACC 167 [2009] NZACC 221 was to the respective qualifications and experience of Drs Berry and Antoniadis both appear to be appropriately qualified. Dr Berry is described as an occupational physician with qualifications of MB ChB, BSc, hons, AFOEM and Dr Antoniadis is an occupational health medical practitioner MB ChB, FRNZCGP, Dip Occ Med, Dip Sports Med. [32] I consider it is an important factor that the respective assessments were separated by just over a year, and that the observation of Dr Antoniadis that all the signs are, if Dr Berry's report is to be accepted, that there may have been a deterioration. However, as noted earlier, the issue for the Court is the situation as at the time of the VIMA, and where the preponderante of medical opinion lies. [33] In support of the respondent's position, there is both the GP questionnaire, the IMA and then the VIMA which conclude there was capacity to work. The point is, that three medical personnel involved with the appellant were all indicating capacity and only one, a year later disagreeing.. [34] Dr Berry's differing analysis a year later, focuses primarily on confidence, tearfulness and motivational difficulties including irritability. While he did mention a diagnosis of depression, I agree that much of that seems to be based on the appellant's self assessment. Dr Antoniadis, it is true, did not delve in any great depth into those areas but he has explained his reasons for not doing that, namely that there was no indication of any material problems in that area. (35] The reality is, that the appellant is highly qualified vocationally, with a BA degree, a Certificate in Computer Applications, Diploma in Teaching and an MBA together with incomplete qualifications in the area of Bachelor of Information Technology, Diploma in Teaching English as a second language and Library Studies. 36] There is also, the evidence that generally the appellant managed to engage in academic studies during her rehabilitation and, that her daily living activities do illustrate capacity for engaging in various activities as described earlier albeit in a primarily family context. [37] The appellant asserts an ability to tolerate employment per se, but with no clear evidence as to what, if anything, she has attempted to do other than the academic studies and other activities described earlier. [38] I agree with the respondent, that in terms of medical issues, (there being no challenge to the vocational independence occupational assessment), the issue is vocational independence and not, whether or not the appellant has anxiety, irritability, lack of motivation or the like. [39] I agree also, that in terms of the Martin test, the preponderante of the medical evidence does not support Dr Berry's view, based as it is, largely on the appellant's self reporting. [40] To succeed in her appeal, the appellant needs to establish that none of the work types identified as appropriate by Dr Antoniadis are appropriate in terms of capacity. She has in my view failed to do that. [41] Accordingly the appeal is dismissed. There is no issue as to costs. an manlea Judge A N Maclean District Court Judge Solicitors: John Miller Law for the appellant ACR 162-12-Darwin. doc