Hooper v Accident Compensation Corporation

IN THE DISTRICT COURT AT NAPIER WELLINGTON REGISTRY [2011] NZACC 32 Al 80/10 UNDER The Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to s. 151 of the Act BETWEEN PETER NORMAL HOOPER of Napier Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at NAPIER on 18 May and 1 December 2010 DATE OF THIS DECISION 4 February 2011 APPEARANCES The appellant with his friend Mr Te Kuru Messrs J Castle and P McBride, counsel for ACC RESERVED DECISION OF JUDGE P F BARBER The Issue [1] An ACC 15 May 2009 decision suspended the appellant's entitlements on the basis that he was no longer incapacitated. Was that decision correct? Background [2] The appellant has cover for a lumbar disc prolapse suffered on 20 April 2005. The appellant was then shearing a sheep when he twisted his back and experienced pain down his right leg. There was associated numbness and weakness in his right foot. [3] On 26 July 2005 Mr lain Kelman, orthopaedic surgeon, carried out a medical review and noted: 2 "Mr Hooper who is now 43 years of age is a shearer and has been working in this industry for 20 years. He also does forestry and bush work when there is no shearing work to be done. He has had multiple trauma as a result of a motor vehicle accident in the past. . He has had a period of sciatic pain some 10 years ago which resolved into conservative treatment. During shearing in April he exacerbated his back problem once again and this resulted in classical sciatic type pain indicative of entrapment of nerve roots at L5 and S1. This is now resoling with conservative treatment and it may well be that it will resolve sufficiently to return to his pre-injury occupation." [4] Mr Kelman diagnosed the appellant as follows: "Neurological backache. This I would consider it most likely to result from L4-5 disc prolapse on the right side. The rationale for this diagnosis is that the history is very clear. He does work which precipitates this type of injury. The clinical examination shows very clear evidence of entrapment at L4-5 and impinging upon both the L5 and S1 nerve roots." [5] Asked about the likelihood of the appellant returning to his pre-injury occupation, Mr Kelman commented: "I consider that he will return to his pre-injury occupation. He can carry out his normal activities of daily living ... The prognosis for him returning to work is good however I would qualify this by saying further that there is likelihood of a reoccurrence of this condition. He needs to be aware of this, this can be managed however if the above rehabilitation plan is strictly adhered to." [6] On 11 October 2005 the appellant was seen by Mr Sud Rao, orthopaedic surgeon, who noted that symptoms had improved but there was still a history of right buttock and calf pain. An MRI was recommended. On 8 November 2005 Mr Rao wrote to the appellant's general practitioner, Dr Bannister: "I reviewed Peter today. His MRI scan confirms that he has a small, but definite, L5- S1 disc prolapse, that is impinging on the S1 nerve root on the right. On a brighter note however, he has improved significantly since I saw him. He is now much more mobile and is keen to go back to work as a shearer. I feel that while he could certainly pursue such an option, there is some risk associated with this, given the nature of the job and I think he really needs to very gradually work back into this position. He is certainly going to look into this matter. From my point of view he is well enough at this stage that I really do not need to interfere with his management." [7] Also, on 8 November 2005 Mr Rao wrote to the appellant's ACC case manager advising: "With respect to injury resolution, given the nature of Peter's injury, it is going to take some time to resolve. Whilst the activity at the gym, that has been advised for him by you, is likely to help, it is worthy to note that Peter himself has an excellent gym that 3 he works on at home and he is certainly aware of what is required. It may be beneficial for him to have an exercise programme outlined to him that he could do himself at his own gym and then perhaps get back to work as a shearer, as he so wishes. I have advised him that he needs to take it easy, particularly given the nature of his problem." [8] On 1 March 2006 an MRI scan was performed by Dr C J Fan, radiologist. Dr Fan summarised the findings as follows: "Compared with previous study there is slightly more prominent right posterior lateral disc protrusion at L4/L5 compressing a little more on the dural sac." [9] On 1 June 2006 Mr Rao reported that the appellant had tried unsuccessfully to return to his work as a shearer. Mr Rao noted that the appellant's condition had worsened since he last saw the appellant and that the MRI in March had suggested problems with the L4- L5 disc. However, Mr Rao considered that the L5-S1 disc was more problematic. [10] On 5 September 2006 the appellant was assessed by Dr Frank Thomas who wrote a comprehensive pain assessment initial interview report. [11] On 12 January 2007 Dr Ruttenberg, occupational medicine specialist, provided an initial medical assessment. Dr Ruttenberg considered that the appellant did not have fitness for work, given the awkward postures and need to perform tasks that would place strain on the lumbar spine. [12] On 8 December 2006 Mr Rao commented in relation to Dr Ruttenberg's report as follows: "I believe the text of his report is accurate, however, I can see the ambiguity in his MRI reporting. There is no doubt that this man does have at least 3 level disc problems in the lumbar spine." [13] On 9 November 2007 Mr Rao commented: "He continues to have right sided L5 irritation from time to time and we know that he has multiple level disc problems with L4/5 disc prolapse on the right ... I think it is a question of appropriate assessment by ACC for graduated return to work and the type of work that he is capable of doing given his current situation." [14] On 13 August 2008 the appellant was assessed as having a 10% whole person impairment by Dr Johnathan Wright. Reports of ACC investigators [15] On 25 February 2009, ACC received a report and request for time extension to complete surveillance/enquiries from Mark Keaney, of Advance Investigation Ltd. Mr Keaney summarised the results of the investigation then as follows: "On the 11 February 2009 we visited and spoke with an informant in Onekawa industrial Napier whom is in the shearing industry. Information received, was that, Mr Hooper shears for Murray King at 3137 SH 5 Te Pohue. Mr Hooper is on ACC so by way of remuneration Mr King makes payments under the table." [16] On 7 April 2009 ACC received a further report from Mr Keaney who advised: "that the investigator had met with a Mr Tahau who stated he had been station manager for Mr Raukes for past eight years. Mr Tahau stated, that he used Bob Puna as the shearing contractor. Mr Tahau stated, that one of the shearers called Pete told him he used to shear for Brendon Mahoney. We know from informants that Peter Hooper had worked for Brendon Mahoney as a shearer in April 2005 prior to and up until his injury. Pete shore the main shear in December 2008 and the lamb shear Feb March 2009. Mr Tahau stated, he keeps the tallies for each shearer which he is happy to present if required. Mr Tahau, stated, Pete averaged around two hundred sheep a day. Mr Tahau stated, that all monies owed are paid directly to the contractor. Mr Tahau stated, at no time do we pay the shearers direct. This statement was dated 17 March 2009." [17] Mr Keaney reported that the investigator had met with Murray King, owner of the farm at Te Pohue SH5. Mr King had advised that Bob Puna was the shearing contractor and that they did have a shearer by the name of Pete. The tally entries from the book to pad notes regarding lambs and ewes sheared by Pete on stand one were provided. Mr Keaney recorded that the investigator had visited the property on 19 March 2009 when the shearing team were to be working. Mr Keaney wrote: 'Mrs King and the investigator walked to the woolshed and carried out measurements entered the woolshed where the investigator observed a shearing team in action. The investigator was advised by Mrs King that stand one was where the main shearing machine operated the hand gear and the shearer on that stand was known to them as Pete. Our investigator observed the shearer (Pete) in stand one. We observed Pete was a solid Maori male with dark hair, clean shaven wearing blue jeans, white singlet and work boots. Pete was in a shearing stance and we observed him shear for one complete unit and lift the ewe onto its four legs and place it down the shoot to the yard. Our investigator observed Pete return to the holding pen remove another unit and continue in a shearing position with no support required ..." [18] The appellant observed to me that he would only shear with "work boots" if shearing only "the odd one" and that he would never "lift" a sheep as they lift themselves. [19] The investigator completed a registration check on the vehicle the shearing team arrived in, and noted that it belonged to a Mr Murray Puna. 5 [20] On 30 March 2009 the investigator contacted Rex Bullock of Waikou, who advised that he had used Murray Puna's shearing team in 2008 and provided a tally book for shearing on his farm. Mr Bullock advised that the person known as Pete did use a harness to support him while shearing. [21] On 23 April 2009 a final report was provided to ACC from Mr Keaney. He reported that the investigator had met with Mr Puna and that: "Mr Puna stated that Mr Hooper has been working in the team since the end of 2007 up to March 2009. Mr Puna by his own admission said that Mr Hooper was shearing an average of two hundred sheep a day when in the shed ... Mr Puna informed our investigator that Mr Hooper was paid at the end of each shed shear. Mr Puna stated that Mr Hooper was receiving $1.50 per sheep shorn and a further 50 cents per sheep crutched." [22] Mr Keaney noted in his conclusions: "From enquiries to date and surveillance of the client to date we can confirm that your client Mr Peter Hooper is working and receiving income from his work. Taking into account the crutching tally Mr Hooper is averaging a total of two hundred head a day shearing and crutching. These totals would be the same on all five sheds the team shear at. Mr Puna by his own admission indicated that Mr Hooper would have shorn the same totals per day in 2007/2008 season as he has done in the 2008/2009 season whilst in Mr Puna employment. At no time during our surveillance of Mr Hooper have we observed him to be suffering any apparent incapacity. He moves freely and appears to be fit. He does not limp. He does not demonstrate any difficulty, standing, lifting heavy objects, bending pulling heavy objects or walking. He is able whilst bent over a sheep shear right to left in a sweeping motion without displaying any difficulty in doing so when observed by our investigator on the 17 March 2009 at 10am in the shearing shed on SH5 Napier." [23] The report attached a handwritten statement by Murray Puna dated 20 April 2006. Mr Puna stated: "My name is Murray Puna and reside at 4 Maywell Pl Maeaemu Napier. I'm a shearing contractor employing a team of shearers one of the team members being Peter Hooper and has been shearing for me since the end of 2007 up to 2009. I was not aware of Mr Hooper being on ACC. I note that average shear a day would be 200 year day. I pay Mr Hooper at the end of each shear which he received in cash with a payslip indicating how much he has shorn." 6 [24] On 6 May 2009 Dr Hannes Sohnge commented: "Thank you for your letter re Mr Hooper. I saw him in February this year. He told me he had ongoing back pain radiating to the R leg with sensory loss of the R foot. He had some limitation of movement and an absent R ankle reflex. I did not ask him about work, but he certainly insinuated that he had not been working and was unable to do so. If I was aware that he had been able to shear up to 200 sheep per day I would most certainly not have provided him with a medical certificate." [25] A further report was received by ACC on 11 May 2009 from Mr Keaney. This enclosed a further statement from Mr Puna, dated 6 May 2009, regarding the hours worked by the appellant over the shearing season. [26] On 15 May 2009 ACC issued a decision suspending entitlements. ACC advised that it was considered that, from at least October 2008, the appellant had been substantially capable of returning to his pre-injury employment. [27] On 20 August 2009 ACC received a letter from Clifford Church, solicitor, advising that ACC had not provided a reasonable notice of cancellation of entitlements. He enclosed an affidavit from Mr Puna together with evidence from Dr Sohnge. Mr Puna's affidavit stated that his earlier statements were not completely true and deposed: 'In 2008 while having a beer with Peter Hooper he asked if I was ever short of a shearer could he have the stand to teach his 3 sons & a couple of cousins how to shear. I agreed on the condition that we used Peter's name in tally book because the farmers would not have let the young fellas have stand and he always had to be there. The reason I gave misleading information to Mr Kearns is because I'm not registered as a contractor and as far as I know Peter Hooper did not receive any cash, it was shared out amongst the boys." [28] In a note dated 17 August 2009, Dr Sohnge wrote that he had been asked not to provide further medical certificates until the investigation was complete. [29] On 4 December 2009 an investigator, Mr Christoffersen, wrote to Mr Keaney: "Our investigator was able to speak with Mr Puna via telephone this day at 12.25pm. Our investigator was advised by Mr Puna that Mr Hooper came to him and was threatening Mr Puna to supply the affidavit to keep the family peace. Our investigator asked Mr Puna if he considered the investigator put words in his mouth Mr Puna's reply was no way. Our investigator was advised by Mr Puna that since the date of the affidavit Mr Hooper has not worked for the team nor has he spoken with him. Our investigator advises that should the matter be brought to hearing the tally books would be available, however all information in the investigator's report re tally entries for Pete known as Mr Peter Hooper was copied by the investigator at the time of the interview on the farm properties." 7 [30] I note that there is no direct witness evidence from any of them, Messrs Keaney, King, Tahau, Bullock or Puna. Mr Christoffersen gave evidence at the review hearing by telephone and I set out the following extracts of that. "Mr Woodhouse: Go ahead, Mr Christoffersen. Mr Christoffersen: Yeah. Okay. Yes, I received a - an instruction from our - Mr Kearns who is our leading investigating, senior investigator, to - from a - a file from ACC regarding Mr Hooper was shearing for- direct for a Mr Murray King on Tempahai(?). So our initial investigations were started by locating where Mr Hooper resided and then we moved to speak with Mr Murray King. We found that the information we received from Mr King was that, no he did not employ Mr Hooper as a shearer but knew Mr Hooper as a shearer on his property for the last two years and that he actually was a member of the shearing team of Murray Puna's who resides at 4 Maxwell Place, Maraenui. And we then found that Mr Puna carried out his shearing team with the property of Mr Bullock in Tutira and a property at - on the tope of the Titiokura. And Mr Simon Potahau, T-A-H-A-U is the manager there who also informed us that Mr Hooper was always on stand number one and has shorn there for the last two years with Mr Puna's team. With that, I visited Mr King's property and observed Mr Hooper shearing at number one stand with the team on the day. They also said - Mr Bullock, Mr Tahau and Mr King, also stated that they had seen Mr Hooper shearing through the day with a harness to assist his shearing which some shearers do while they're shearing to support their back. Then we were - we received the tally book for Mr Murray King's and on the dates in turn. I did not take into consideration the lambs that were actually crutched as well because I understand at that time, Murray had said - Mr Murray Puna had said - Mr Hooper: Can - can we just stop there? Mr Christoffersen: - that sometimes they teach the younger ones the crutching and so forth and the shearing techniques in the shed and therefore, we - 1 - I have said that - or I would leave those numbers out and the tally from the tally books taken from 15 October, 24 November, 25 November, 26 November, 21 November, 1 December, 28 January - this is 2008 to 2009, right through to 17 March. The working times in the shed and on 15 October there was 168 ewes shorn; 24 November there was 142, the time was from 7.00 am to 5.00 pm and on 26 November, just to give you a - a - an average three, 162 from 7.00 am to 5.00 pm again. There was a short day there from 7.30 am to 10.00 am on 27 November with 91 and then there was 184 done on 28 January, between 7.30 am and 4.30 pm. That was an average working week in the shearing season at that time and our main investigation was - at that time was Mr King 8 employing Mr Hooper and we actually found that that was not correct. We then spoke with Mr Murray Puna on 6th of - sorry, 20 April, I think it was we spoke with him regarding - Mr Hooper: But buddy, didn't they get the affidavit Murray Puna gave them that none of that was true? . .. Mr Christoffersen: At that point we - I then went and - Mr Hooper: I went there. Mr Christoffersen: - visited Mr Puna at 4 Maxwell Place in regards to finalising the information that Mr Hooper was a member of his team for shearing and Mr Puna gave me a - a written statement that said it was true and - true and correct that he did have Mr Hooper on - on - on his team and he was unaware that he was on ACC and that he did pay him after the end of each shear on - at the shed. And he would have probably have worked approximately 40 hours on Mr King's property in every one season and after that, it would probably be 24 hours on the other couple of shears and he would receive approximately $600 and these payments would be paid in cash. It's true and correct and he's later since withdrawn that - that - that statement. I then did speak to Mr Puna - Mr Hooper: He has later withdrawn the statement. Speak up, please. Mr Christoffersen: - and I then did speak to Mr Puna several days ago and he said that Mr Hooper had visited him and was rather angry about the situation and asked him - put pressure on him to withdraw the statement and make an affidavit which he - Mr Hooper: What a load of total lies, mate. Let's go to court. Mr Christoffersen: He then said to me, at that phone call, that he had not spoken - that Mr Hooper had not spoken to him since he had made that affidavit or - or spoken to him at all or - or worked for him at that - since that date. That's about the all information that I can provide. Mr Hooper: And how many sheep did you see me shearing? Mr Christoffersen: - did observe you shearing, Mr Hooper, and you looked at me directly. Mr Hooper: And how many sheep did you see me shearing? Mr Christoffersen: You shear - you sheared three in the - in the time I was there. 9 Mr Hooper: And how long was that? Mr Christoffersen: It was around about - you were around about 10 minutes. Mr Hooper: Okay. Okay. Well, how did you know which one was me? Mr Christoffersen: You were identified by Mr Murray King. Mr Hooper: By Mr who? But Murray - Murray King wasn't in the shed that day you turned up." The review hearing [31] A review hearing took place on 21 December 2009 before Mr Rex Woodhouse, Reviewer, who on 7 January 2010 issued a decision dismissing the application. Mr Woodhouse made the following findings: [a] A plain reading of the reports from the investigator indicated that the appellant had been working in a shearing role; [b] The evidence from Mr Puna indicated that the appellant may have been shearing around 200 sheep per day; [c] An important. piece of evidence included the GP's comment that he would not have certified the appellant as incapacitated if he were shearing 200 sheep per day; [d] It was reasonable for ACC to suspend entitlements based on this information. [32] A study of the Review transcript leads me to conclude that the investigator, Mr Christoffersen, visited Mr King's farm and found the shearing team of Mr Puna at work. It seems that Mr King pointed out the appellant shearing that day on the number 1 stand. The record suggests to me that the appellant accepted he used the number 1 stand that day but only to teach "at least five boys" and the tallies for that stand that day and about that time were the work of those "boys". Even then, the appellant asserted "I want to shear sheep more than anything" but said that the state of his back prevented that and needed surgery. The appellant admits he can shear a sheep but due to pain not two or three in a row. [33] I think it is now undisputed that farmers will usually only record the qualified shearer's name on tally sheets, and not the trainees names. [34] Inter alia, the Reviewer felt the evidence showed "a significant likelihood that Mr Hooper had been working, whilst receiving his weekly compensation benefit". That likelihood may not be a probability. The Reviewer also found that "ACC had a range of compelling information in its possession" when it suspended compensation. I would not go so far as to so conclude. He also felt the evidence "to raise serious doubts" about the appellant's ongoing eligibility for compensation. I do not feel that ACC could have been satisfied, on the balance of probabilities, that the appellant no longer had a right to compensation because I find that the evidence, overall, is unclear. 10 Recent Events [35] At the hearing of this matter on 18 May 2010, I directed ACC to pay for a further medical report on Mr Hooper; and that both parties were to try and obtain any records of wages paid to Mr Hooper while he was on ACC [36] ACC has undertaken further investigation to try and obtain records of wages paid to Mr Hooper while he was receiving weekly compensation entitlements from ACC [37] On 15 July 2010 Mr Mark Heaney, of Advance Investigations Ltd, reported as follows: "Mr Puna would not provide us with a copy of the affidavit or any other documentation that he may have. [38] On 20 July 2010, Janice Meyer, ACC investigator, provided an email summary of efforts to obtain records from Inland Revenue. Ms Meyer stated: "I tried to obtain earnings details from IRD for the 2008 and 2009 financial years and have been advised that as the client is a salary and wage earner returns are not required to be filed by him." [39] On 21 July 2010 Dr Ruttenberg completed a further medical report having examined Mr Hooper and reviewed the medical and surveillance reports on file. Dr Ruttenberg summarised Mr Hooper's condition as follows: "Mr Hooper has a history, symptoms and signs that suggest the effects of a lumbar disc prolapse on the right, at the L4/5 level. His pain does appear to have a mechanical component in terms of exacerbation associated with biomechanical activity and the adoption of constrained postures of the lumbar spine." [40] In relation to the appellant's capacity to work as a shearer, Dr Ruttenberg commented: 'Mr Hooper presents as someone who would not manage shearing sheep, given the back pain that he describes and limitation of range of movement. This is also in terms of clinical findings today. The reality however, is clearly different and the enclosed investigation reports, suggest that he has been able to shear in excess of 100 sheep on a regular daily basis. Clearly, any signs of radiculopathy today, are chronic in nature and it is unlikely therefore, that he has an acute disc prolapse present. Putting it another way, it is in my opinion, highly unlikely that someone with an acute symptomatic disc prolapse, and significant pain symptoms, would even volunteer and attempt to shear sheep given the recognised biomechanical and postural demands associated with sheep shearing. While I would usually advise someone with this pathology, to avoid sheep shearing, indeed as has been recommended by Mr Rao as well, the reality is clearly different. Mr Hooper in this regard, has demonstrable work fitness for sheep shearing. 11 The most objective way of clarifying work fitness is to assess whether someone is able to physically perform the work tasks. This is usually better than a functional capacity evaluation, which attempts to artificially recreate biomechanical demands associated with a particular work role. In this regard as noted, Mr Hooper has demonstrated that he is able to perform the demands associated with working as a sheep shearer. It is my opinion unlikely, given the symptoms, and in terms of the history and clinical findings noted at my previous assessment and in the context of findings today, that the situation would have changed appreciably since 2009. The findings in this regard, are similar to those noted in my last assessment in 2006. Given that he has been observed working as a shearer in 2009, 3 years later, and given very similar clinical findings today, it is likely that the situation is unchanged and he still has work capacity as a shearer. In this regard, I note Mr Hooper's clear assertion today that he in fact has not worked since December 2005. Indeed, he clarified the date with me, when I commented on the Mr Rao's report of February 2006, noting his attempt at return to shearing in December 2005." [41] ACC have now located an earnings certificate obtained from IRD for the 2008 and 2009 financial years. This provides that $2636.00 were received by the appellant from an employer called David Mossman for the year ending 31 March 2009. ACC feel It is unclear in what capacity the appellant received earnings from Mr Mossman but I deal further with this aspect below. Relevant Law [42] Relevant provisions governing the way ACC determines incapacity are ss. 100 to 104 (inclusive) of the Act. [43] Section 100 of the Act holds that an entitlement to weekly compensation is dependent on a claimant's incapacity for employment and vocational independence. [44] Section 102 states: "102. Procedure in determining incapacity under section 103 or section 105 (1) The Corporation may determine any question under section 103 or section 105 from time to time. (2) In determining any such question, the Corporation - (a) must consider an assessment undertaken by a ... medical practitioner; and (b) may obtain any professional, technical, specialised, or other advice from any person it considers appropriate." [45] Section 103 of the Act specifies how ACC is to determine a person's incapacity, when they were an earner at the time of their personal injury. The test is set out in subs.2 as follows: "The question that the Corporation must determine is whether the claimant is unable, because of his or her personal injury, to engage in employment in which he or she was employed when he or she suffered the personal injury." 12 [46] Section 104 reads: "104. Effect of determination under section 103 on entitlement to weekly compensation If the Corporation determines under section 103(2) that the claimant is not incapacitated for employment - (a) a claimant who is receiving weekly compensation for loss of earnings from employment - () loses that entitlement immediately; and (ii) cannot be subject to a determination under section 107 in respect of that incapacity." [47] Section 117 of the Act holds that ACC may suspend, cancel or decline entitlements. This provision provides: "The Corporation may suspend or cancel an entitlement if it is not satisfied, on the basis of the information in its possession, that a claimant is entitled to continue to receive the entitlement." [48] The appellant must be able to establish the basis for cover and entitlements at any time. The issue of onus was discussed in Wakenshaw v ACC, High Court, Auckland, AP 29/03, 19 June 2003, Priestly J said at page 7: "The over-arching position must be that a claimant, at any stage of the process, must be able to show on the balance of probability that an entitlement exists. The totality of the evidence must establish the crucial nexus." [49] However, in Ellwood (2007 NZAR 205), the High Court held that ACC must have a sufficient basis before it is not satisfied that a claimant is entitled to continue to receive the entitlement. In Milner (187/2007), Judge Ongley commented on Ellwood as follows: "Malon J considered section 116 of the 1998 Act which contained wording identical to section 117 of the 2001 Act. Malon J interpreted the requirement to mean that before suspending entitlement ACC had to be not satisfied of the claimant's entitlement. Reaching that conclusion requires a positive decision equivalent to being satisfied that there is no right to entitlements, a test that would not be met where the evidence was unbalanced or unclear. Other principles are well established. Prime consideration is that there must be a causal nexus between the covered injury and the condition of the claimant for which entitlements were sought at the time of the Corporation's decision to suspend or decline entitlements." Discussion [50] It is put for ACC that the appellant must show, on the balance of probability, that his injury prevents him from returning to work as a shearer. However, ACC must show that it had reasonable grounds for being not satisfied, on 15 May 2009, that the appellant remained incapacitated from shearing work. [51] In determining the issue of incapacity under s. 103 of the Act, ACC must consider an assessment undertaken by a medical practitioner. ACC relies on the evidence of the appellant's GP, Dr Sohnge, in support of its decision dated 15 May 2009 that the appellant was no longer incapacitated from work in his pre-injury employment. Following an investigation Dr Sohnge reported that the appellant would be fit for work. However, Dr Sohnge's view seems premised on the existence of evidence that the appellant was in fact working significantly at shearing. It seems to me that evidence is inadequate. 13 [52] I accept that Mr Rao has consistently noted that the appellant may make a graduated return to his pre-injury employment. Mr Kelman, the orthopaedic surgeon who initially saw the appellant, also considered that he would return to work in due course. It is surprising that the appellant says he has been unable to return to shearing, but that is very demanding physical work and would be difficult to carry out with a lumbar disc problem. [53] It is submitted by Mr Mcbride that the comments by Dr Ruttenberg should now be viewed with some caution as there is a question mark over the veracity of what the appellant was telling his medical assessors. I am conscious that the credibility of the appellant is very much in issue, and that there are problems with interpretation of the evidence gained by the investigators hired by ACC. [54] It is submitted for ACC that the appellant has returned to the exact duties as a shearer that he carried out prior to his ACC covered injury; that appellant was observed by the investigator carrying out these duties; and the farmer was aware of where the appellant normally worked, in the number one stand. Possibly, all that is correct but I am very unconvinced as | explain below. [55] Mr McBride puts it that the nature and volume of the work carried out by the appellant completely overturns the picture of incapacity, and Dr Sohnge quite reasonably stated that he would not have certified the appellant as incapacitated had he realised he was carrying out this work. Possibly, that is correct but I remain unconvinced. [56] Through his previous solicitor, the appellant has provided evidence from Mr Puna apparently recanting his earlier statements. It is submitted for ACC that a recent report from the investigator casts doubt on this, and Mr Puna's late change of position should be treated with appropriate caution; and that the suggestion that several cousins or sons of the appellant were in fact carrying out the shearing, is contradicted by the observations of the investigator on 19 March 2009; and that Mr and Mrs King, the farm owners, noted that the appellant was at the same position at stand one. I deal below and above with available evidence. [57] It is also submitted for ACC that the difficulty in obtaining further documentary evidence from Mr Puna should not prohibit a finding that the appellant carried out the work shown in the tally books. That is a question for me to assess on the evidence overall. [58] I agree that IRD records (or lack of them) could not be determinative as the appellant would not necessarily have filed returns in relation to cash earnings and, apparently, was not required to file returns. ACC would take into account that the appellant seems to have earned $2,636 in the 2009 financial year as noted above. It was at first put that the character of those earnings is unknown. By 1 December 2010 a document dated 23 November 2010 signed by a farm manager (and witnessed) had been adduced. It stated that the appellant had performed shearing work on the farm on 12 August 2008 in that he arrived in a van with two young sons who did the shearing work. A tax declaration was completed in the appellant's name for the $2,636.30 involved had been adduced. That document was also produced. The document outlines further shearing work done by the sons on 12 and 17 August and 19 December 2008 and specifies that payments went into the appellant's bank account (respectively for $1,116.74, $413.61 and $515.42 as net of tax. The gross total was $2,636.30. The farm manager also states "on none of the three occasions that Peter came to Woodlands Station did he undertake any work while he 14 was here. For the most part of the time he hung around the shearing shed." It would follow that those monies were earned by the sons. [59] Mr McBride submits that, in relation to the new medical report of Dr Ruttenberg (dated 21 July 2010), the key point is that the most objective evidence of work fitness is whether someone is able to physically perform the work task. However, naturally, Dr Ruttenberg has assumed that ACC's advice about the extent of the appellant's work is correct. [60] Mr McBride also submits that, ultimately, the question hinges on the credibility of the appellant and that of Mr Puna, whose evidence has been inconsistent; that the review decision does not make direct findings on the appellant's credibility; however, it seems implicit that the Reviewer did not accept Mr Hooper's explanation, given at review, that he was simply teaching others how to shear. I note that Mr Puna has not given evidence viva voce under oath. I have the advantage of having heard evidence from the appellant. I accept that, at least to quite some extent, he was tutoring others to shear at material times. [61] ACC submits there is sufficient evidence to dismiss the appeal. It seems to me that an analysis of the evidence leads to factual likelihoods but does not establish the case against the appellant on the balance of probabilities. [62] The appellant's theme is that he has never worked at shearing since he has been on weekly compensation and is physically unable to; but that he has supervised shearing work undertaken by his sons and nephews and, indeed, has actually tutored them. He states that the work alleged to have been done by him was done by them and they were paid for their work and he was not. He refers to the eventual August 2009 sworn statement of Mr Murray Puna stating "that as far as I know Peter Hooper did not receive any cash, it was shared out amongst the boys". [63] The appellant asserts that he did not receive any money directly from the farmer Mr M King as ACC alleges. He refers to that farmer's letter of 17 May 2010 (set out below) stating "It is also necessary to point out that we do not pay individuals cash but pay the contractor a set rate for the whole gang". [64] The appellant submits that when available documentation is examined, i.e. wage documentation, tax papers, or bank statements, there is no evidence of him receiving any wage or money for shearing at material times. The appellant seemed to be saying that he had an arrangement with Mr M Puna that if one of Mr Puna's shearers did not arrive, so that there was a spare shearing stand, the appellant could use it to teach his three sons and a couple of cousins how to shear. The appellant says that Mr Puna agreed to this on the condition that Mr Puna used the appellant's name in the tally book "because the farmers would not have let the young guys have a stand and that I always had to be there". He referred to Mr King's statement "as with all shearing gangs there is a teaching process to help young shearers. Peter Hooper has done this the last few years". Simply put the appellant maintains that he has performed occasional tutoring sessions in one of Mr M Puna's shearing sheds "to try to help out young shearers who are learning the trade." [65] The appellant also submits that the effect of the medical reports referred to above is that the appellant has multiple back problems and simply could not work as a shearer. One can certainly so conclude from the said reports. 15 [66] The appellant also puts it that he is not a shifty person nor a violent or aggressive person and he finds it offensive that he has been so termed. I believe that the appellant has applied pressure in various quarters in an effort to obtain a favourable outcome in this case even, subtly, on me. [67] Of course, the appellant seeks that his entitlements restart effective from the date they ceased i.e. 9 May 2009 apparently. He has submitted that there are no wage slips, tax papers, invoices or bank statements to show that he has received wages from Mr M Puna. In fact, Mr Puna was subpoenaed to the hearing before me on 1 December 2010 but did not appear and could not be found. According to the appellant, Mr Puna would not be well enough at any time to contribute to the issues in this case and has declined to provide any records of shearers which might resolve the issues of this case one way or the other. [68] At the resumed hearing before me on 1 December 2010 the appellant's case was pressed by both the appellant and Mr Te Kuru. Their theme was why is no one believing the appellant, that much of the evidence against him adduced by ACC is hearsay and rather vague, and that even the medical specialists have been influenced against the appellant by the allegations of ACC investigators [69] The appellant emphasised what I have referred to above that he did go back to work in 2006 as a shearer but collapsed after 28 days and was paid for those 28 days. He feels that ACC's attitude is related to the fact that he worked for 28 days then. [70] The appellant also criticised the method used by ACC to investigate him. He alleged that the main investigator pretended, at various times, to be a shearer's parent, a tourist, and an insurance agent in order to spy on him. The appellant put it that although that investigator had a camera, he did not seem to use it to photograph the appellant shearing as the investigator alleged. [71] The appellant alleges that this case has arisen from a personal vendetta against him by an ACC case manager who alleged that the appellant kept abusing her over the telephone. Apparently she has resigned from ACC. I think it very likely that she received such abuse. [72] Mr Te Kuru completed the appellant's arguments in this case by simply putting it that although the appellant is proud to have been a shearer by occupation because "it is a man's job", there is no clear evidence that he has been shearing since his injury with weekly compensation, and the work allegedly attributed to him by ACC was performed by the appellant's sons and nephews. [73] Inter alia, Mr McBride emphasised that the appellant is still covered for his injury but weekly compensation has been suspended. This is because ACC considers that the appellant is fit for work and has been working as a shearer and that the evidence is such that ACC is entitled to be not satisfied that the appellant has been incapacitated at material times. [74] ACC particularly relies on the sworn evidence of the investigator Mr Christoffersen given at the review hearing and on the overall medical evidence. Mr McBride emphasises that the document referred to as an affidavit of Mr M King is in fact only a signed statement by Mr King dated 15 May 2010. Mr McBride puts it that document is notable more for what it does not say than what it says. Mr McBride seemed to be saying that the statement 16 emphasised that the appellant has for a number of years tutored young shearers but does not say that the appellant himself has not been working as a shearer at material times at the King property. The statement reads: 'To Whom it May Concern The King family has know Peter Hooper as a member of shearing gangs for many years. He has shorn in contract gangs on our property. First for Peter King (my father) and then for myself. As is with all shearing gangs there is a teaching process to help young shearers. Peter Hooper has done this the last few years. It is also necessary to point out that we do not pay individuals cash but pay the contractor a set rate for the whole gang. Yours sincerely 17-15-10 Murray King" [75] Although I did not find the appellant a convincing witness, he could be telling the truth. I think it is rather likely that the appellant is so strong and fit that he has been able to carry out shearing work to quite some extent over material times, despite the state of his nerve roots or lumbar discs as referred to in the medical evidence, and that he would have been paid for such work in cash "under the table". However, I consider the ACC investigators' evidence about that is somewhat vague and unconvincing and lacks adequate corroboration. Much of it is hearsay. If Mr Puna's initial statements to an investigator (as set out above) are credible, that is devastating for the appellant's case. However, the evidence was retracted in about August 2009, maybe, due to threats from the appellant to Mr Puna. Also, I have recorded the appellant's explanation about tutoring 'the boys" to shear. [76] Mr Christoffersen observed a person called "Pete" (whom he seemed to identify to the Reviewer as the appellant) shearing on 19 March 2009 but that evidence could be consistent with the appellant merely having been training his sons or nephews. The investigator gave a description of the shearer and that description could fit the appellant but would fit many others. That investigator was called as a witness at the review hearing, and I have set out above much of his evidence. That shearer seems to have been in Mr Puna's gang. [77] I realise that Mr King used Mr Puna's shearing gang over material times which included a shearer called "Pete" and before his injury the appellant seems to have worked for Mr Puna. A Mr Tahau knew of the shearer called "Pete" working at material times. However, apart from Mr Christoffersen's evidence all the evidence about a person doing shearing work at material times is somewhat vague and does not create "probability" to me, but only a "likelihood". As explained above, I do not find Mr Christoffersen's evidence to be conclusive. 17 [78] For the above reasons I conclude that there was not a sufficient evidential basis for ACC to suspend the appellant's entitlements on 15 May 2009. This appeal succeeds and the weekly compensation is to be restored and resumed for the appellant from its cut-off date. No issue of costs seems to arise, but I reserve leave to apply. Judge P F Barber District Court Judge WELLINGTON Al 80-10.doc(aw)