Greenland v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2013] NZACC 86 UNDER The Accident Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. ACR 663/11) BETWEEN ROBERT GREENLAND Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 20 February 2013 Appearances: Mr G Willson advocate for appellant Mr A D Barnett for respondent Judgment: 27 March 2013 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] This appeal concerns a decision by the Corporation suspending weekly compensation for a claimant who had been required to undergo psychometric testing and had refused to failed to do so. The reasons for refusal will be discussed at some length. [2] The grounds for refusal touched on: - unnecessarily repetitive testing - misinterpretation of prior test results predetermination of a result of testing - testing in excess of an agreed IRP - testing for purposes that did not comply with the legislation - insistence on testing without prior open discussion with the appellant's advocate concerning the methodology and the purpose of testing Background [3] Mr Greenland had cover for a Schedule 2 occupational disease under s 30 of the Act. The injury was accepted as Occupational Solvent Neurotoxicity (OSN). In an opinion of 4 June 2007, psychiatrist Dr Greg Finucane diagnosed the appellant as suffering Major Depression in partial remission, Somatoform Disorder and Mild Neurocognitive Disorder. Dr Finucane advised the Corporation that the appellant's functional limitations were due to the combination of disorders on Axis I especially the cognitive disorder and personality change, so he was not employable due to a tendency to make mistakes and form problematic relationships with those around him. He said that the accompanying functional limitations were such that the appellant was not capable of even a few hours work per week. Attempting to work when he was not capable of it would prove frustrating and his level of agitation would increase. If his functional limitations improved to the level that he would become capable, engaging in work would be beneficial for his overall health and well-being. [4] Mr Greenland had been assessed in 2006 and the assessment had reported inconsistency of presentation with exaggerated fatigue, and poor performance on a formal symptom validity measure. Dr Finucane noted that the results on a test of new learning used at his 2007 evaluation seemed less adequate than expected, but it did not appear that the reason for this was malingering or factitious illness behaviour. The question or variation or inconsistency caused a great deal of trouble four years later after the appellant underwent more psychometric testing and the Corporation was advised that his responses were so variable that the tests had to be regarded as invalid. Dr Finucane remarked briefly on the appellant's entrenched belief in the predicament of his illness, when he wrote: "He has become increasingly focussed on illness concerns since becoming unable to work and at present the most plausible diagnosis taking all of the facts into account might be a combination of solvent induced neurotoxicity with accompanying personality change and mild cognitive difficulties but also somatoform disorder. It is unclear whether any somatoform component might have developed as a result of depressive symptoms which are now under better control on antidepressants, but it seems reasonable to also note on Axis I the depressive symptoms and this could be done provisionally by labeling them as Major Depression in partial remission." [5] The central arguments in this appeal are whether the Corporation then acted reasonably in requiring further psychological assessment, and whether the appellant acted reasonably in refusing, through his advocate and attorney, to attend certain proposed psychological examinations for the purpose of certain assessments. The nature of the examination and the nature of the proposed assessments are contentious in this appeal. [6] Mr Greenland was represented in this appeal by Mr Graham Willson, an advocate with some experience related to brain injured claimants. Mr Greenland has certain tertiary qualifications, but none in the field of medicine or psychology. Mr Willson authored much of the written material in evidence in the appeal, as well as the appellant's submissions. The material contains a good deal of his reflections on psychological aspects of the appellant's case, and in accordance with general principles of evidence that material has to be weighed by way of submission rather than as evidence. But also included in it is evidence of Mr Willson's quite intimate knowledge of Mr Greenland's affairs and his endeavours to function with brain injury. Mr Willson held a power of attorney from Mr Greenland, granted in 2004. He took an active part in assisting Mr Greenland's with aspect of his life, as well as representing him in dealings with the Corporation. [7] Less relevant to the immediate appeal are Mr Willson's allegations of a predatory policy on the part of the Corporation to subject some long term claimants to processes that are designed or destined to curtail their entitlements. Whether or not there is any substance in those claims, an individual appeal is not an enquiry in which they can be considered and the Court is confined to the evidence affecting the appellant's own entitlements attaching to his cover for OSN. [8] Having said that, I record that Mr Willson's presentation of the appellant's case was thorough and meticulous in analysing the difficulties facing the appellant, the Corporation and the practitioners concerned with psychological and psychiatric assessments. Mr Willson's dealings with the Corporation on behalf of Mr Greenland appear to have been constructive, but became confrontational over the disputed question of the Corporation's right to demand repeated psychological testing. [9] After the Finucane report which included advice to the Corporation that the appellant could not work, he was next assessed three years later by James Cunningham, clinical neuropsychologist. Mr Willson remarked that the Corporation had offered no constructive social rehabilitation in the preceding three years. [10] Mr Willson attended with Mr Greenland at Mr Cunningham's assessment at Greenlane. Mr Greenland had travelled from his home in Gisborne. In his report, Mr Cunningham noted that Mr Willson provided valuable collateral information and support, and that he specifically requested robust symptom validity measures be administered in order to establish the authenticity of Mr Greenland's claim and current cognitive deficits. Mr Cunningham wrote on 16 August 2010: "On both the 14" and 16" August 2010 I explained the important of Mr Greenland applying maximum effort on testing, in order to provide valid psychometric data that would assist in diagnosis, opinion and treatment recommendations. I discussed the previous neuropsychological assessment in January 2006 by Wolfgang Greve. Mr Greve's opinion in 2006 noted concems with consistency of performance, presentation ("dramatic'), exaggerated fatigue, and poor performance on a formal symptom validity measure. Mr Greenland reported poor recall of previous testing. He could not recall whether or not he had been presented with a number of measures that were repeated on the current assessment. He had no comment regarding Mr Greve's opinion. . . . Throughout the formal testing session his performance was noteworthy for slowness to respond to questions and to complete questionnaires and or test instrument. He was tangential in conversation and often wandered off track, forgetting the purpose of the initial enquiry. At times he deferred to Mr Wilson to provide background information and to assist him in answering questions." [1 1] The above extracts are included by way of background. Mr Willson submitted that the argument does did not concern the accuracy of Mr Cunningham's findings but rather the justification for more assessments without at least providing the proper context for the purpose of the assessment (rehabilitation) and the methodology for assessment of Mr Greenland's engagement or performance affecting the validity of the test results. Mr Cunningham noted that when Mr Greve assessed the appellant in 2006 he administered a symptom validity measure on which Mr Greenland performed well below empirical standards. His performance was at chance level on trial 2 "of this well researched and validated measure". [12] In his own report following the tests that he administered, Mr Cunningham stated: "As a routine part of the psychometric assessment, measures of effort/symptom validity were administered. Symptom validity measures are insensitive to many forms of cognitive impairment and provided the examinee is appropriately engaged in the test procedure examinees will easily score above empirical cut-offs. Reasons for poor engagement cannot be definitively ascertained however they may be as aresult of factors such as disinterest, deliberate underperformance and/or trying to impress upon the examiner the extent of the person's perceived difficulties. For reasons that cannot be clearly ascertained, Mr Greenland scored severely below empirical cut-offs indicating suboptimal engagement in the testing situation. This was evidenced on several validity measures. The extent of the under performance is marked and such that his performance is well below cohort groups of severe dementia patients. The results obtained and evidenced on memory measures are so impaired that they do not make neuropsychological sense." [13] In his opinion and recommendations, Mr Cunningham said: "Mr Greenland reported that he was applying maximum effort on all measures and due to the fact that he had left Auckland prior to test scoring and report compilation I did not have an opportunity to discuss my findings. I recommend that Greenland be referred to an experienced clinical Neuropsychologist to examine his beliefs and cognitions relating to his medical condition (OSN) and current incapacity. . . . . I have discussed Dr Finucane's assessment on August 16 2010 with him and understand his opinion is that Mr Greenland's diagnosis is of occupational solvent neurotoxicity complicated by a Somatoform Disorder. Dr Finucane recommended a number of further medical examinations including: MR brain scanning evoked potential studies, and blood tests to check a wide range of other conditions. Mr Greenland's functional capacity to drive and travel independently provides evidence of intact functional ability. On a number of measures he performed at pre-injury expectation (average range ability). This adds credence to the Somatoform Disorder contribution. A diagnosis of a somatoform disorder implies that mental factors are a large contributor to the symptoms' onset, severity and duration. Somatoform disorders are not the result of conscious malingering or factitious disorders and these are not indicated in this case." [14] In subsequent correspondence with the Corporation, Mr Willson was at pains to point out that Dr Finucane and Mr Cunningham did not equate the diagnosed somatoform disorder with malingering. A somatoform disorder implies mental factors not caused by neurotoxicity. Mr Willson submits that the somatoform component is allied with the appellant's brain damage because it is impossible to tell whether it would have existed independently. The appellant had little education and suffered progressive neurotoxicity that gradually affected his personality over several decades. Therefore personality factors that compound his symptoms cannot be separate from the covered injury. That is a proposition for which the appellant provides no expert evidence, but Mr Willson's explanation is based on a history which he has explained in his submissions, and the conclusion is at least credible and is also consistent with the reports of Dr Finucane and Mr Cunningham. [15] The diagnosis of somatoform disorder is relevant in assessing the appellant's performance underachievement in neuropsychological testing. Dr Finucane saw him again and wrote to the case manager on 26 August 2010. This report explained the nature of the toxic injury and the appellant's recent history, and went on to state: "Mr Greenland had almost 30 years of solvent exposure in occupations which have been associated with occupational solvent neurotoxicity, at a time that work practices to prevent such a disorder were much less stringent than are now utilised, and describes a history of typicat symptoms including cognitive difficulties, headaches, photosensitivity, irritability, rambling repetitive speech, and poor coordination, Thus the diagnosis of occupational solvent neurotoxicity is prima facie appropriate. The difficult issue in this case is Mr. Greenland's performance on neuropsychological testing, which has been marked by non-valid performances. In the original testing by Debbie Snell there were deficits but also depressive symptoms, the subsequent testing by Wolfgang Greve showed deficits but a positive TOMM, and I understand the current neuropsychological testing is likely to be similar. Mr Greenland seems to have become aware of his own symptoms by 2002, and shortly afterwards became somewhat politicized by supporting another group with an occupational solvent neurotoxicity claim. The history of becoming more aware of his symptoms over time after exposure ended is not atypical for individuals with occupational solvent neurotoxicity in my experience. My previous diagnosis was of occupational solvent neurotoxicity complicated by somatoform disorder. Taken as a whole, the evidence still supports that diagnosis. Thus the DSM-IV diagnostic statement is: Axis I - Personality change due to OSN; Major Depression in remission; Somatoform Disorder NOS; Mild Neurocognitive Disorder; Alcohol abuse in remission; Panic Disorder. Axis II - No disorder Axis III - Occupational Solvent Neurotoxicity He is predisposed to the somatoform component by a pre-existing tendency to alternative health beliefs and a somewhat jaundiced view of authority figures. Some diagnostic complexity is added by the sensory changes and it would be possible to refer him to a neurologist for evoked potentials studies in order to assess whether there is evidence for changes in sensory nerve function and whether this suggests any particular diagnoses (such as nutritional deficiency secondary to his dietary habits) that might be affecting his neurological status. .. . .. The diagnoses are described above. The personality change, depression and neurocognitive disorder appear likely to be the result of occupational solvent neurotoxicity as previously diagnosed. The somatoform disorder is non- accident related, as are substance related conditions and the Panic Disorder arose due to non-accident related stress. His injury related limitations are difficult to be sure about in the absence of valid neuropsychological test performance. However, on reviewing the evidence it is difficult to support my previous statement that he has no work capacity whatsoever. If he is able to drive from Gisborne to Tauranga in one day followed by a further trip of several hours the following day it seems likely that he could work four hours some days and hence might be capable of 10 hours work per week if his hours of vocational activity are increased vey gradually. Typical cases of OSN do not show much improvement it the exposure has been for decades, and whatever his work capacity is now is likely to remain his work capacity, until of course non-accident related factors erode this. His reluctance to consider work is a barrier to rehabilitation in some respects." [16] Mr Willson received a copy of Dr Finucane's assessment. He was in communication with Mr Greenland who was clearing out his possessions and getting ready to move from Gisborne to Nelson in a housebus that he owned. Mr Greenland commented constructively on aspects of the reports, and on Dr Finucane's view of the appellant's ability to work he wrote: "I wouldn't accept Rob at a 10 hour/week level and I'd prefer he doesn't see that and get the wrong idea. That's about the level I planned as merely an opening gambit - getting to know people and a bit of work hardening without being a long enough stretch to piss them off. Then gradually easing hours up in well defined stages with reduced supervision/interaction (again so he doesn't annoy). The objective is to have what he can do valued enough and an employer(s) savvy enough to see how to use him without disrupting other workers. While I think it's sensible to be realistic, I won't buy into an upper limit. If we don't do that and things get just a bit hard, Rob will start thinking about only doing enough to satisfy others - he'll fixate on the 10 hour idea, I want his self-actualising and self-confidence returning - to get him internalising the idea that he can make a valued contribution around those who'll give him the chance - just enough to motivate doing a bit more, making some commitments to." [17] Those observations are included in this judgment for context. It was Mr Willson who eventually indicated Mr Greenland's "refusal" to attend for further examination. The question of reasonableness depends to some extent on the quality of communication from Mr Willson and the degree of responsibility in his approach to Mr Greenland's claimed entitlements. His recommendations to graduate Mr Greenland's entry to employment, and to withhold Dr Finucane's suggestion of an upper limit, appeared to be sensible and consonant with promoting rehabilitation and recognising the claimant's own obligations within this limits of his injury and accompanying somatoform disorder. Mr Willson went on to comment on the invalid test results, as follows: "The concept that Rob's neuropsych tests have an invalid component is incorrect. I will, through you, take this up with both Dr Finucane and JK Cunningham later. I think they've missed an important explanation of the variance by taking the results in a concrete and computational way and missing the abstraction - the mania. Neither, I believe, have enough extended daily/hourly experience around patients like Rob, observing their adaptive behaviours and patterns of thought, which are layered on top of already dysfunctional personality traits - exacerbated and added to by the injury and exaggerated by depression. Their neurological disciplines can only explain excess and loss (deficits) not variance, so they're guessing. I scored the tests in my notebook as they ran. The results were as I expected and the same variance was present as before. No patient except one of genius could intentionally replicate that variance so precisely on three separate occasions several years apart, especially one with such well demonstrated memory and recall deficits [negative Rey AVT & CPT], continually confused by retroactive interference [RI]. The RI test confirmed this as did Rob's 'strategy' for problem solving the block designs (= guesswork)." [18] Here, Mr Willson strays into a professional field for which he has no formal qualifications. It is apparent that he had some relevant experience and had done a good deal of research into abnormal behaviour and psychometric testing. However a difficulty with his approach to the Corporation's eventual demands for further testing was that he challenged the views of qualified people with his own "unqualified" opinions. His justification for doing so rested partly on his intimate understanding of the appellant's situation, as well as some level of acquired understanding of symptomatology and testing processes. [19] When writing this letter, Mr Willson was anxious to avoid a finding of malingering that could gain weight through repetition and become part of Mr Greenland's reported history. He was concerned with the unexplained variation that affected the validty of the tests. He said: "This is very important - variance that looks like malingering HAS to be investigated or it will plague Rob's treatment forever. If it becomes necessary because ACC misdirects itself, I will arrange to have these more comprehensive forensic tests run. It's expensive but it's better than guesswork. I will say that without these and a highly experienced neurologist, ACC will never have the ammunition to say Rob's presentation is not caused by his exposure and due to some other pre-existing condition. Maybe it doesn't matter to prove it one way or the other because there's enough' to say it is the result of his exposures. An MRI when he's in Nelson will go some way and will add some important detail." [20] The letter also contained an interesting sidelight on Mr Greenland's organisational deficit. He had readied his housebus to travel to Nelson towing a 4 wheel drive vehicle. He failed to disengage the wheel hubs and the engine of the towed vehicle engaged during the journey, somehow seizing the motor and shredding the tyres. The event was put forward as an example of failure under unsupervised conditions. [21] The psychological testing had been done under an IRP of 17 August 2010 which provided for referral for the Cunningham neuropsychological assessment, the further assessment by Dr Finucane, and a complex initial occupational assessment to identify employment options using the appellant's transferrable skills, qualifications and past work history and allowing a maximum of three months vocational assistance if required for any of the job options. The occupational assessment was then to be sent to Dr Finucane for comment. That was the process described in the IRP and Mr Willson submitted in this appeal that the psychological assessments under the IRP had been completed. He submitted that, despite the invalid results, further testing should have required a new IRP with an agreed plan. He submitted that repeated testing is onerous for a claimant and can prejudice his rehabilitation. [22] Mr Willson submitted that an crucial concern in this case was to devise a suitable "battery of tests" that would produce valid results for a person with the appellant's brain injury. [23] The Corporation referred the psychological reports to its branch advisory psychologist Mr Christoph Huelsmann who wrote a review of the reports on 7 December 2010 and concluded with this summary: "In my knowledge neuropsychological test results indicate that this client is clearly exaggerating his symptoms. This is based on the fact that Mr Greenland failed at least two symptom validity tests clearly, that he is able to function in some aspects of his life much better than the test results would indicate, - plus the fact that his results on testing and over three tests over several years were quit inconsistent, i.e. showed a kind of random pattern of improvements in some areas and deterioration in others. I personally believe that other possible explanations, as suggested by Dr Finucane, are almost superfluous to investigate, in that the test results were so exaggerated that psychological or compensation related factors are a much more likely explanation for his difficulties than HIV or dietary deficiencies. However, I understand that Dr Finucane might wish to exclude all other possible explanations before a clearer conclusion can be made. I think it is quite unlikely that a 'somatoform disorder' can account for these inconsistencies, as validity measures are much more responsive to exaggeration with intent than to 'unconscious' or non-intentional exaggeration based on illness-belief (as in somatoform disorders)." [24] It is at this point that Mr Willson's engagement as attorney, advocate and counsellor for Mr Greenland came under some strain. The next step required an objective evaluation of the meaning of the information gleaned from the three sources including Mr Huelsmann, and a constructive and suitably informed plan for sorting out the conflict. Mr Willson was severely critical of Mr Huelsmann's assumption that Mr Greenland was "clearly exaggerating his symptoms". Mr Willson's view was that the test results were invalid in the sense that they were not reliable, and that they should either be put aside because they were unnecessary, or that any further testing should be carefully matched to Mr Greenland's particular kind of impairment including the somatoform component. The conclusion that Mr Greenland had exaggerated his symptoms was one that was not voiced by Mr Cunningham, but only by Mr Huelsmann after reading the reports. That conclusion was liable to prejudice the appellant's claim to entitlements in the future. In Mr Willson's opinion, if another series of tests was administered without compensating for Mr Greenland's impairment and somatoform disorder, the tests would produce a similar result and probably confirm Mr Huelsmann's opinion as the definitive understanding of the appellant's failure to cooperate in his assessment and rehabilitation. [25] Mr Willson apparently understood the difficulties in assessing Mr Greenland. In a letter he wrote to the case manager at about that time he said: "I have been working very long hours in the past few months, carrying an impossible load. I haven't chased Rob because it makes no difference if or when I do locate him. He is incapable of making and keeping any agreement he makes and continues to use his injuries to excuse himself. While he is the worst affected of my brain injured clients, he is also the least committed to exploring rehabilitation initiatives that don't accord with his own ideas of what he should be free to pursue. Rob also consumes too much of my scarce resources and I've advised him that I can't continue to help him because I'm retiring and tailing off my support work." [26] On 10 February 2011, the case manager wrote: "ACC are required to re-refer to James Cunningham to fully/further explore the reasons for the exaggeration of symptoms as per the findings in the neuropsych assessment. This is required to provide more certainty re the extent to which a 'somatoform' disorder or other psychological reasons ie anxiety are a factor. There is then to be more time to be allowed than last time for James Cunningham to discuss findings with Dr Finucaine and provide a written report." [27] Mr Willson replied, expressing some disagreement with Mr Cunningham and stating: "I have no objection to more precise testing as long as I am consulted on its form and raison d'etre and some agreement obtained on its purpose and direction. If we are looking 'at' variance and not 'for' a somatoform, then the research has valid direction." [28] He wrote again on 17 February, enquiring about administrative decisions that had been made on undisclosed grounds: "I have sent ACC well reasoned reports over time with argument on Robert's case and commented on the direction of ACC's management of his claim. To date, I have received nothing substantive from you with respect to my commentary on the results of prior assessments. I don't believe any of this will have been handed to 'the panel', and yet I have managed his social rehab as "treatment provider' all this time. I don't know who they currently are nor of their statutory function and powers. You have not told me, nor given me their report or memoranda about how and why they have made these recommendations for further testing and assessment. In the current climate regarding ACC's handling of long term claimants, this usually means only one thing. Furthermore, important rehabilitative measures and assessment likely to benefit my Client are being ignored; such as his sleeping disorder and night-breathing disorder which is an injury- related and expected outcome of long term solvent exposure; ranging from chronic rhinitis/sinusitis to polyposis. MRI/CT and more importantly, EEG have not been mentioned. The 'Panel' descends on a minor somatoform component and wants this to become the focus of attention. Do you really think I am that stupid Amy?" [29] Though the tone of this letter was rather more heated than usual, the correspondence between Mr Willson and the case manager had been conducted reasonably and courteously on both sides. However Mr Willson wanted to see any documentation of internal discussions, or communications with Mr Cunningham or Mr Huelsmann that reflected on the kind of psychological information that the Corporation was seeking, and the purpose for obtaining it. He was concerned that the direction of the Corporation's enquiry was not for rehabilitation, but to expose the claimant as a person concealing his true functional capacity. He was concerned that the Corporation would be persuaded by Mr Huelsmann's view that the appellant was exaggerating his symptoms, a view that seemed to have been adopted by the Panel whose membership and deliberation had not been disclosed. Exaggeration of symptoms (Mr Huelsmann) could only mean deliberate exaggeration, and it was likely that the Corporation would explore whether the appellant was in breach of his obligations of honest disclosure under s 72 of the Act. In this letter Mr Willson said: "This [renewed testing] has got nothing to do with the rehabilitation or maintenance of my Client, nor is it enquiry directed toward new research or innovation in the field of neurotoxicity, or some hitherto unknown aspect of his covered injury. The somatoform component has been known from his first diagnosis and has been exhaustively covered and explained by others and cogently examined by myself in reports to ACC. You are therefore moving away from honest dealing with this claimant and embarking on a Sec.117 option for the sole purpose of exiting my Client in accordance with Exit Plan' model set out in the Riley-Cosgrove Internal Briefing Paper 2009. That is my assessment until proven otherwise." [30] The Corporation's file noted that Mr Willson apologised for the email of 17 February and some of its content. In a long letter on 12 March 2011 he set out his views of Mr Greenland's situation. He would have been aware at that stage that the Corporation could attempt to invoke s 117 and suspend entitlements in the event of Mr Greenland's failure to attend a psychological examination. He endeavoured to persuade the Corporation that the appellant should not proceed straight to psychological re-testing. He wrote: "I believe now that we must have a meeting with your Panel (TCM, BAP. EMA) to ventilate the medico-legal concerns I have with ACC's understanding and management of this claim. This can be a collegial face to face, or mediated if you feel threatened by this request. I think rather, that your Panel and advisors would learn a great deal and I would at least gain some understanding of their thinking, the logic of which escapes me at present. Their intentions may be innocent andstraightforward, but 1 claim they are seriously misguided and my client unnecessarily burdened. Furthermore, basic TIL which he desperately needs is still being ignored, despite all the evidence already gathered. Failing such a forum and some attempt by ACC to properly justify its intended actions, I regret I will have to consider injunctionelief to stop it. ACC is either oblivious to the legal risks it takes or unaware of its obligations. There are some things I can allow that are relatively inexpensive and cost-effective in eliminating 'other causes' of dysfunction, despite the fact this offers no benefit to my client. However, in general I object to the whole tenor of what is planned and do so for completely rational, logical, medico-legal reasons, which I explain as follows:" (Mr Willson's emphasis) [31] Mr Willson then went on to protest that the Corporation was attempting to review the appellant's cover. In fact cover was not in question. The Corporation was concerned with capacity, which depended on the effects of the injury. That may have involved a question whether the somatoform disorder was caused by the injury, and thus whether cover extended to it. The letter continued: "Whether or not this client is attempting to exaggerate his symptoms is simply not worth investigating in any quantitative or technical sense, nor is his failure to make an 'effort' in testing or dramatise his symptoms. Such matters are simply not probative and your advisers are misdirecting themselves and ACC, thinking they have 'discovered something' - just what they are trying to prove is not clear. Please have them put aside their excitement in the interesting theoretical issues and have them answer this question; 'What are you trying to achieve?' Ithought we were attempting to find common ground for a 'bottom up' strategy to improveRobert's general functioning. Let them explain it to me face to face, better still." Mr Willson maintained that: "... the appellant is neither educable nor employable as a function, entirely, of a 40 year toxic insult to the brain - an acquired brain injury. We are dealing with a broken and disorganised mind in a person with a borderline defective personality disorder, the cause ofwhich cannot be doubted as 'more likely than not' a result of his injury and that fact is proven beyond all reasonable doubt. He went on to say: "A very obvious suspicion permeating everything in the past 24 months, is the unfounded belief by ACC staff and advisors, of an underlying psychiatric disorder which, if only it could be discovered, will enable ACC to question then deny cover and/or entitlements to my client. Such belief is totally irrational and I must conclude that continuing such investigations are the pursuit of ACC policy goals and nothing whatever to do with discovery which might help my client. Either that, or you are all misguided, influenced by I that policy and simply and completely missing the point. [32] It might be thought that Mr Willson was rather overstating his case. Turning now to the submissions that he made at the appeal hearing, the rationale of his objection to ACC's further assessment requirement was as follows: "ACC Branch Advisor Psychology (BAP) Christoph Huelsmann, noted that with some test results, Robert's responses were well below cohort groups of severe dementia' patients, akin to random or chance results. His bias and thus, his faulty hypothesis, is that Robert is part of the so-called 'normal' population (cohort) when he clearly belongs to his own cohort - those with a working lifetime of solvent intoxication. His responses must be compared with peer reviewed, normative data for his cohort. Any fanciful conclusion might be drawn when one assumes he belongs to the cohort of ordinary citizens who have the guile and intellect to try and cheat, fake or malinger injury. In the normal population, forensic testing provides useful additional support for clinical judgement, but becomes self-fulfilling when applied to those whose injury itself, is generating the responses to be measured." [33] In support, he quoted from a letter that Mr Cunningham had sent in correspondence with Mr Huelsmann, where Mr Cunningham wrote: "Just to clarify, reasons for suboptimal performance can be (in practice) complicated, elusive and variable. Unless I have a basis on which to say it I will not propose reasons for suboptimal performance without evidence as incorrect attributions made by the assessor can be harmful)" Mr Willson agreed with that part of the letter, but not with other comments in the same letter, in which Mr Cunningham indicated that he could in principle give an opinion on probability of malingering. Mr Willson considered that this offer was tainted by discussions in which Mr Huelsmann had made his views known to Mr Cunningham. [34] Mr Willson submitted in the appeal: "There is extreme danger when there is clear evidence of confirmation bias being signalled by the purchaser of the assessment service (the Respondent) who wants to direct the hypothesis constructs and his enquiry is about Causation' and 'Cover' without any sign that his enquiry is cohort- sensitive. So he (Huelsmann) sets out to persuade the 'Independent Assessor', James Cunningham, to forget about his ethics and to rig the testing using hypotheses which he will help formulate. Neither of these gentlemen are forensic specialists, evidenced by their lack of understanding of cohort-consistent normative data with which the only valid comparisons can be made. There are no such peer-reviewed data for Robert's cohort. Robert always fails the response validity profiles in such tests and to do so repeatedly, even when warned he'd be 'found out', ought to be proof enough of his dementia. It is an expected result with dementia in fact, Robert is not a suitable candidate for many psychometric tests. It is supposed, for example, that language once acquired, is resistant to change through brain damage, so word-matching is one such test for estimating invalid responding - but works only with a 'normal' population cohort. Robert's lack of education, poor reasoning skills, lack of insight and word-finding difficulties are based on his lack of language skills, so he fails such tests. If given the tests based on normative data for children (WAISS III versus adult WAISS II) the answers would be quite different, but still invalid if not adjusted also for his poor perceptual organization, vocabulary, working memory and processing speed." and further "The reports received confirmed it was not malingering, factitious responding, or psychosis. It was merely invalid responding; consistent with the disease state. Now, an ACC Branch Advisor Huelsmann, who is not a specialist forensic psychologist and has NO medical or medico-legal qualifications, advises ACC that causation and incapacity might be discovered here and re-litigated, despite medically qualified Occupational Physicians (Glass 2003, Meads 2007, Reekie 2009) confirming that both Cover and Incapacity are 'more probably than not', due to his injury. Injured and distressed people should not be continually subjected to the stress of diagnostic ordeals just to overcome medical scepticism and ignorance.HP 191 " [35] This submission is coloured by overstatement, and expresses views on a specialised field in which Mr Willson has no formal qualification. However it explains why he was objecting to re-assessment. Despite the problem of overreaching in Mr Willson's lay person's critique of psychometric testing he did advance a credible rationale to enter into dialogue with the assessors before testing. An aspect of this was that the Corporation, through Mr Huelsmann, had entered into dialogue with the proposed assessor, and Mr Willson asked for no more than an opportunity to do the same. [36] Returning to the contemporaneous correspondence, there was a regular exchange of emails in May and June. Team Leader Ms Julie Manderson then wrote, confirming ACC's need to explore the symptom validity results and indicating the consequenced of non-cooperation in an email on 27 May 2011: "ACC believe we are being more than reasonable with asking Robert to attend this further follow up with Mr Cunningham. Until you tell me what it is for, we are equally reasonably refusing to attend. I need to advise you that if ACC has not received confirmation by the 03 June 2011 advising that Robert will be attending then ACC will need to consider whether this may then affect his entitlements to weekly compensation." [37] Mr Willson replied: "I appreciate that you are trying to accommodate my requests and I understand you may be frustrated by them. I too am getting frustrated because you now seem to be writing to the file for appearances only, since you are clearly avoiding answering my questions. I shall persist until you do. I have demonstrated ample willingness to cooperate with ACC and facilitate assessments, as any reading of file history will reveal. We have attended and will attend all assessments that are lawful, when I know what they are for and can prepare and advise my client what it is he is consenting to. We have an impasse and I have requested mediation, which you have refused. The opportunity is there for ACC to give me information that mitigates my concerns, and affords me the opportunity to present a fully informed consenting client for assessment. I want to AVOID noncompliance, but you are giving me no choice. That must be noted clearly in the file." [38] In this letter, Mr Willson listed a number of questions that he wanted to put to Mr Cunningham and to Mr Huelsmann, and stated that he required a full disclosure of documents because he could not obtain answers to the questions. In the main they concerned the proposed series of tests, the appropriateness of symptom validity testing and framing of the referral questions. He maintained that he needed the information in advance because he could not deal with it adequately if he did not find out until he arrived at the appointment with his client. [39] Ms Manderson then replied on 31 May 2011, asserting that ACC had been fair and reasonable, but also refusing further discussion. The letter stated: "This is the last time that I am going to correspond or answer questions in relation to the follow up assessment with Mr Cunningham. The reason I am saying this is that I believe ACC is being fair and reasonable in requesting Robert attend this follow up assessment. This initial assessment was something that you also requested so that we could then obtain specific comment from the neuropsychiatrist on possible employment options opened up by the IOA and IMA. . .. The reason for this follow up assessment (which is quite a standard requirement when there are exaggerated symptoms shown) is to provide an opinion based upon multiple sources of converging evidence i.e. self report, observed behaviour, psychometric test results and validity indicators. This would involve some further neuropsychological assessment, personality assessment (MMPI-2). Structured Inventory of Malingered Symptomatology (dependant on presentation)) and whatever measures are appropriate at that time. Poor effort can co-exist alongside neurological impairment. These factors are not mutually exclusive. The referral comment to Mr Cunningham will be: Please 'fully explore the possible reasons / explanations for the exaggeration symptoms found in his Neuropsychological Assessment from August 2010, and to provide opinion and rational (evidence) for the most likely reasons for Mr Greenland's presentation.' Clients can exaggerate symptoms for a multitude of reasons. To establish that exaggeration of symptoms happened is one step. The logical next step is to try to make sense of Mr Greenland's presentation, which will inform further interventions/ assessments if needed." [40] Mr Willson's submission is that this proposal contained confirmation bias. Mr Cunningham had never said that the appellant exaggerated his symptoms. He said that Mr Greenland underperformed, and that the symptom validity tests showed poor test engagement, and that test results were inconsistent with his functional capacity to drive. Exaggeration (suggesting deliberate intent) was introduced by Mr Huelsmann. Mr Willson had repeatedly urged that it was an assumption that could not be applied to Mr Greenland without a clear understanding of his mental and personality disorders. [41] On 2 June 2011, Mr Willson re-stated his earlier request for disclosure and specified, as a matter of urgency: "1. All Communications between BAP Huelsmann and ACC, Cunningham and Finucane, however construed; all documentation regarding the proposals Huelsmann has made with respect to further testing and assessment. 2. All communications between ACC, its staff and/or advisors and Cunningham and Finucane, however construed; all documentation regarding proposals for further testing and assessment. 3. All documentation supplied by Cunningham and Finucane to ACC; correspondence, memoranda, phone call discussions and/or notes in reference to same with reference to further testing and assessment of my client. 4. In other words; I want every piece of documentation and/or records relating to the above. I want to be able to cooperate with ACC on a collegial basis, with dialogue and discussion over what is best for my client. I am not opposed to assessments per se, but I am opposed to ACC refusing to supply information without reasonable cause. You have refused to engage in mediation over the matter. Please advise urgently that you will supply the above and if so, whether or not it will be in my hands by Thursday ," June." [42] He also stated that he needed the information to properly prepare the appellant for the additional testing that, and to advise him what it was for and whether or not it was lawful. There was perhaps some suspicion that he intended to coach Mr Greenland and somehow influence the tests. However I am satisfied that his purpose was to establish that the tests could usefully be applied to a person of the appellant's mental status, and to reinforce that the appellant had to apply his best effort. The questions about invalidity of the testing and the proper approach to renewed testing have not been resolved. That is what Mr Willson wanted to discuss but he was not offered an opportunity. [43] Ms Manderson replied that the disclosure information had been sent to government services in relation to an OIA request. She adhered to her earlier letter stating that she would not answer questions relating to the reassessment. She specified an appointment time on 16 June at Auckland for Mr Greenland's re- assessment. Mr Willson then wrote on 3 June 2011 "... A choice of dates is normal and courteous. You appear to have given no thought at all to the affects of the proposed testing and assessment schedule on Robert's fatigue, endurance, ability to concentrate and the question of task interference. I am currently unable to establish this due to your refusal to provide requested information. If this is not properly considered and allowances made accordingly, Robert is being set up to fail again. You won't listen to me, so I have to set aside time to discuss this with Robert's GP and have him write out the medical grounds for pacing the testing modules, which may mean we require two days rather than one to accomplish the tasks involved. Clearly, still intending to go and comply, if I get transparent answers and information. The first available GP appointment is on 16th June for this issue will be addressed as well as sedation for the purposes of completing the MRI, as previously advised. I will prepare information for this appointment on the basis of the material you have provided to me by June 9 , which gives me one week to assess the implications and summarise these for Dr Ewer. These difficulties arise from your refusal to accept open and transparent negotiations and there is obviously a conflict with dates. I suggest you consult with Messrs Cunningham and Finucane for a range of future dates, giving me sufficient time to prepare my client. I would also ask you to reconsider your position on consultation and dialogue. On the basis of Huelsmann's report to ACC, this proposal remains a 'fishing expedition' until you provide the documentation I've requested that might disabuse me of that conclusion. Mediation remains an option." [44] In the appeal, Mr Willson refers to that letter as an indication that he did not refuse to have Mr Greenland attend, but that he needed time to consult with the GP and assess information relevant to the proposed assessment. [45] The case manager then notified Mr Willson that Mr Cunningham would come to Nelson and would be available from 6th to 8th July. [46] Mr Willson then wrote to Ms Manderson on 30 June 2011, again raising questions about disclosure of documents and complaining that replies from ACC had not been responsive to the questions that he had asked. He did not say whether or not the appellant would attend Mr Cunningham in Nelson but he asked for sufficient time to deal with the preliminary questions that he had been insisting on. [47] Ms Manderson then wrote on 30 June 2011: "I am writing in response to the detail of your email below. ACC believe we have been more than reasonable in advising of requiring the further assessment with Mr Cunningham and the reason for this ACC had arranged an appointment for Mr Greenland in Auckland and when you advised this date was unsuitable we then advised of a further date where Mr Cunningham would be able to see Mr Greenland in Nelson. ACC do not believe Mr Greenland is being reasonable in now saying that he and yourself are unavailable on this date as you have been provided with a reasonable timeframe to ensure Mr Greenland could attend ACC would like you to confirm by 3pm Friday 1 July in regards to whether Mr Greenland will attend the appointment with Mr Cunningham on July 6th. If ACC does not have a response from you or him we will take this to confirm he will be attending. This is a reasonable request due to Mr Cunningham being very accommodating and agreeing to travel to Nelson for this assessment. I must advise you that if ACC are advised that Mr Greenland will not be attending this appointment or if Mr Greenland does not attend this appointment then this will affect his entitlement to weekly compensation. Upon receipt of your email by 3pm Friday ACC will then consider what affect it may have and a decision letter will then be issued. In regards to the OLA request again ACC do not have any specific policy on symptom validity testing and the letter provided to you is correct." [48] Mr Willson wrote a long letter on 1 July repeating his requests for disclosure and dialogue. He explained in some detail the personal and business arrangements that he had to make to deal with a change in appointment dates. He said that even if the bare minimum of information regarding the testing program was made immediately available, he did not have time to properly explain everything and prepare his client for the assessments. The letter covered other topics, and ended: "Robert and I will not be attending any assessments from 6" to 8th July because he cannot be adequately prepared for those dates, for the reasons given." ACC Decision and review [49] ACC then issued its decision on 5 July 2011 suspending the appellant's entitlements. The appellant lodged an application for review which was heard on 23 September 2011 and the review was dismissed. [50] With respect to the Reviewer, this judgment is already overlong and it would not be assisted by reciting the reasoning given by the Reviewer in her thorough and careful decision. In short, the Reviewer decided that the emails showed clear evidence that ACC adequately responded to Mr Willson's concerns while showing considerable patience and tolerance in the face of ongoing and repetitive objections. ACC made suitable arrangements for the appellant's appointment and ultimately the refusal to attend was unreasonable. Submissions [51] It has been necessary to set out correspondence at length in order to consider the questions of reasonableness in this rather unusual case. [52] Under s 117(3) of the Act 3) The Corporation may decline to provide any entitlement for as long as the claimant unreasonably refuses or unreasonably fails to - (a) comply with any requirement of this Act relating to the claimant's claim; or (b) undergo medical or surgical treatment for his or her personal injury, being treatment that the claimant is entitled to receive; or (c) agree to, or comply with, an individual rehabilitation plan. [53] The "requirement of the Act" refers to s 72(1) (1) A claimant who receives any entitlement must, when reasonably required to do so by the Corporation,- ... (d) undergo assessment by a registered health professional specified by the Corporation, at the Corporation's expense: (e) undergo assessment, at the Corporation's expense: ... (g) undergo assessment of present and likely capabilities for the purposes of rehabilitation, at the Corporation's expense: [54] The appellant submits that the proposed assessment was: a) not required by an agreed IRP; (b) that it was not required for the purpose of rehabilitation; (c) that it was sought for the purpose of confirming an opinion held by the Corporation that the appellant had exaggerated his symptoms, a view that had not been articulated in Mr Cunningham's psychometric test report, which referred only to invalidity of the test responses; [55] The appellant submits that the requirement by the Corporation was therefore unreasonable. The appellant also submits that his response was reasonable because: (a) his advocate repeatedly asked for an opportunity to discuss the purpose and methodology for the proposed re-assessment and the Corporation declined that opportunity; (b) ACC had failed to disclose documents relevant to preparation for an examination of the appellant including symptom validity testing; (c) the appellant (through his advocate) understood that the assessor had been briefed on the unwarranted assumption that the appellant had exaggerated his symptoms, so that the assessment would be tainted by confirmation bias; (d) that for a combination of those reasons the appointment for assessment was premature and it was reasonable not to attend; (e) that the Corporation issued a further unreasonable stipulation that the appellant confirm his prior intention to attend and deprived the appellant of the opportunity of completing preparation and actually attending. [56] Mr Barnett for the Corporation noted that Mr Cunningham had reported the appellant's "suboptimal engagement" on his testing and that "the results obtained and evidenced on memory measures are so impaired that they do not make neuropsychological sense". Mr Cunningham concluded that it was clear that the results obtained were invalid and unreliable when Mr Greenland "did not score above empirical cutoffs on a number of symptom validity/effort tests that are sensitive to poor test engagement, yet are also insensitive to all but the most extreme forms of cerebral impairment. As stated above, his performance was at or below that of a hospitalised dementia patient." [57] Mr Barnett referred to Dr Finucane's response that Mr Greenland's performance on neuropsychological testing, marked by non-valid performances, was a difficult issue, and that the somatoform disorder was non-accident related. Dr Finucane stated that the injury related limitations were difficult to be sure about in the absence of valid neuropsychological test performance, and that it was difficult to support his previous statement that the appellant had no work capacity whatsoever. Mr Huelsmann had then advised the Corporation to fully explore the reasons for exaggeration of symptoms, to provide much more certainty about the extent to which a somatoform disorder or other psychological reasons were possible factors. [58] It was submitted that there were emminently reasonable grounds for the Corporation to explore the testing discrepancies in the manner suggested by Mr Huelsmann, and that the case manager and the team manager entered into extensive correspondence with Mr Willson to achieve that end with the purpose of establishing the extent of the appellant's incapacity in order to consider questions of rehabilitation and his ability to work. Furthermore, Mr Barnett submitted that the process was well and truly within the terms of the agreed IRP. [59] Mr Barnett submitted that Mr Willson is not an expert, and is not in a position to give evidence about appropriate or inappropriate psychometric testing, or the conclusions to be taken from Mr Cunningham's test results. The only people who have provided evidence and who are qualified to comment are Dr Finucane and Mr Cunningham, whose opinion was that it was appropriate to have further testing. It was submitted that the process was derailed by and unsupported view of Mr Willson that there had been collusion between Mr Huelsmann and Mr Cunningham and a predatory policy by ACC to get people off the scheme. It was submitted that the notion that ACC was angling to get the appellant off the scheme by finding that his mental impairment was not entirely accident related is not a supportable view. The much more accessible explanation was that the agreed IRP intervention had not been completed and there were inadequacyes in testing that should be revisited. [60] Mr Willson took issue with the respondent's argument relying on Mr Cunningham's report. He said that the report had been mentioned at the review only for the purpose of referring to what other people had said about it, but the Reviewer had then quoted extracts from it. I do not accept that argument. The substance of the Cunningham report is directly relevant to the Corporation's decision for further psychological enquiry. Decision [61] The person whose entitlements are currently suspended is the appellant, whose decision not to attend for further assessment was dictated entirely by his advocate's decisions. The appellant himself is ordinarily bound by a failure resulting from his advocate's decision: see Gedye NZACC [2004] 230, to which Mr Willson referred in his submissions. [62] The core question is whether the Corporation should have allowed Mr Willson to enter into some preliminary dialogue with the assessor or with the Corporation's psychological advisor or advisory Panel. Mr Willson wanted to clarify what tests were proposed and to endeavour to align the testing with his client's mental state including his somatoform disorder and alleged dementia. Obviously that presented difficulties, not the least being Mr Willson's professed understanding of the shortcomings of various symptom validity tests, views which might well have conflicted with the understanding of qualified people. [63] A key to the outcome of this appeal is the question of reasonableness of Mr Willson's approach, quite aside from whether his views were correct or not. This Court has experience of claimants or advocates whose views and conduct are unnecessarily pedantic to the point of being obstructive. In my judgment, Mr Willson was essentially reasonable in his communications, particularly with the case manager, though his levelling inflammatory allegations of collusion and predatory policy did not aid the discussion. His demands for disclosure of documents were repetitive, but they were consistent and appear not to have been satisfactorily answered. [64] Then there is the question whether, notwithstanding reasonableness in communications, the ultimate withholding of consent to attend for reassessment was reasonable or unreasonable. [65] In essence, the Corporation did not stand back and ask what the appellant wanted as a means of preparing for psychological reassessment, but it dictated that the appellant must attend for reassessment and would otherwise have his entitlements suspended. I agree with the Reviewer that the Corporation staff were patient and tolerant, but I do not agree that the process was reasonable. The correspondence was prolonged and Mr Willson's communications were repetitive and sometimes excessive, but he was clear about seeking dialogue with the assessor or the Corporation's advisors. At the same time, the Corporation was inflexible and relied on its powers to require assessment. [66] The Corporation had a fairly sound argument that the IRP provided for assessment, and that the assessment appeared to be incomplete. It sought clarification by way of further assessment, which was a reasonable view to take. But this was a highly unusual case. The appellant had a complex combination of personality disorder, brain injury and mental injury consequences. It was not unreasonable of Mr Willson to foresee that a second assessment could be influenced by a view that the appellant was exaggerating symptoms, and could be confounded by more invalid tests that would serve to confirm that view. The idea that the appellant was exaggerating his symptoms was not voiced by an examining psychiatrist or psychologist, but by a file review, and it then found currency in the Corporation's communications, including the proposal for briefing the assessor. [67] "Exaggeration" suggests a willful misrepresentation of symptoms. It may be interpreted to include misrepresentation caused by a somatoform disorder, but in any case Mr Willson reasonably considered it to be a dangerous description so far as his client was concerned, and one which could possibly be explained as a result of injury related factors. The somatoform disorder was itself a problem area which Mr Willson submitted could not be logically separated from injury sequelae. [68] While Mr Cunningham was apparently conscious of the need for caution in interpreting invalid test results as exaggeration of symptoms, Mr Willson was concerned that there had been discussions to which he was not privy, and that the assessor may well have been influenced, in an unintended way, to reach a conclusion of deliberate exaggeration of symptoms. [69] In this complex case, I find therefore that the appellant's advocate acted reasonably in a course of action that ultimately resulted in refusing to confirm an appointment for psychometric assessment. [70] For those reasons, the appeal is allowed. The review decision is quashed and the respondent's decision suspending entitlements is set aside, with the effect that the appellant will have all his entitlement reinstated and paid to him. [71] The appellant will have costs of $2,500 for preparation and appearance, and reasonable disbursements to be fixed by the Registrar. [72] Costs on the review hearing were declined on the ground that the review was not properly brought. I direct that the respondent pay to the appellant the review costs that would otherwise have been ordered. Judge D A Ongley District Court Judge