Anderson v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND [2013] NZACC 141 ACR 300/12 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN ROWIN ANDERSON Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 28 February 2013 Appearances: J Brock (advocate) for Mr Anderson F Becroft for the Corporation Judgment: 17 May 2013 JUDGMENT OF JUDGE RODERICK JOYCE QC Reason for appeal [1] Mr Anderson has cover for a left arm injury suffered on 2 March 2010 the original claim form description of which was "while working a piece of steel broke and went into his left arm". [2] At the time of the accident Mr Anderson was an apprentice mechanic and when his claim was accepted weekly compensation commenced. [3] By August 2010 the Corporation had decided that the time was ripe for an initial occupational assessment (IOA) which then identified a number of job options seen to suit Mr Anderson's background and skills. And that was followed in ROWIN ANDERSON V ACCIDENT COMPENSATION CORPORATION DC AK [2013] NZACC ACR 300/12 [17 May 2013] November 2010 by an Initial Medical Assessment which spoke of rehabilitative progress having been made to the point where a work trial in light work could be considered. [4] A range of rehabilitative steps relevant to that recommendation was pursued to the point where, by March 2011, the Corporation considered it right to refer Mr Anderson for an assessment of his vocational independence, and he was so advised on 20 June that year. [5] The process then went ahead in terms leading to a 10 August 2011 determination by the Corporation that Mr Anderson had achieved vocational independence. [6] He sought a review of that determination and, being unsuccessful in that endeavour, has turned to the Court by way of appeal filed on 25 May 2012. Background [7] I record the following: On 5 March 2010 Mr Anderson underwent surgery on account the development of a carpal tunnel syndrome from the penetration of his left forearm by the piece of steel. There thereafter appears to have been a significant improvement in arm health and function although it becomes apparent that the consequences of his traumatic accident came to cause him some mental health difficulties. During 2010 Mr Anderson was attended by a hand therapist, Rebecca Clay. She reported on 26 May that year that he had been making slow but steady progress and had regained full movement of his left arm, albeit with some restrictions. She was keen to see him returning to work on a part time basis. By October 2010 nerve conduction studies had been undertaken. These were demonstrative of a very mild carpal tunnel syndrome in his left hand but nothing such as would account for what was demonstrating as a typical pain syndrome which, wrote Dr Simon Chinchanwala, an orthopaedic hand surgeon, was - Hardly surprising considering the terrible trauma that the forearm has gone through. And at that point Dr Chinchanwala considered that Mr Anderson needed pain specialist attention. I rehearse here that, on one description of the accident, Mr Anderson, when 'whacking' a CV joint with a hammer, heard a 'pop' at which point a fragment of metal flew off and embedded itself in the ventral left forearm sending out a squirt of blood about 2 metres in length. [It was discovered at surgery that the piece of steel had affected a complete division of the left radial artery which, after being initially tied off, had been the place from which the metal was removed.] On 25 November 2010 Dr Grant Thompson, musculoskeletal physician, reported that: Mr Anderson had now made a very good recovery from his left anterior forearm compartment syndrome and, classically, did not have carpal tunnel syndrome nor appear to have a complex regional pain syndrome - but there were indications of a central and peripheral neural sensitisation. Dr Thompson saw Mr Anderson on a number of subsequent occasions and by 24 March 2011 had reported that there had been some improvement in his symptoms but; (a) The most troublesome remained constant intense 'needling' and tingling over the radial side of the volar left wrist; (b) Numbness of the index and middle fingers after prolonged typing; (c) Intermittent burning over the ventral aspect of the proximal left forearm; and (d) Aching in the left elbow and along the ulnar aspect of the forearm, But there was full power in hand and wrist and Mr Anderson was continuing with earlier recommended exercises. Just short of 2 months later, when Dr Thompson reported again, he did so to say that Mr Anderson had now stopped all medication. His head felt clearer, and the pain was only mildly worse. He was involved by then in a work trial of 4 to 5 hours per day, 3 days a week, as a vehicle valet and doing some community service at a local school. A July 2010 IRP did, however, point to difficulties in handling the part time work which at that point he had ceased to perform. The plan now was to continue to follow the advice of the hand therapist and hand surgeon when it came to rehabilitative measures. Matters moved on to the point where (10 or so months later) on 26 May 2011 a Functional Reactivation Programme Completion Report was produced - one in which the history to date was summarised thus: Rowin injured his left arm in March last year. ... He was hammering a camshaft when a piece of metal flew off and punctured his forearm. He went on to have a compartment syndrome and resulting fasciotomy. He has made slow progress from this and struggled to return to work as a mechanic. He has attended hand therapy but was referred to Mr Chinchanwala in Auckland for an assessment. Investigations revealed mild carpal tunnel syndrome but the specialist thought Rowin's main problem was his pain. No surgery is required. He has since seen Dr Grant Thompson who has prescribed medication and encouraged return to function and work. He has said the Rowin does not appear to have classic CRPS but has symptoms indicating a peripheral or central sensitisation of the nervous system. Lately Rowin says he has been making some slow progress but he does feel like he is improving gradually. He is trying to use his hand and arm more. However he continues to display evidence of fear avoidance and catastrophication about his condition. He is somewhat upset at ACC and various treatment providers and he worries that he will end up on a benefit. He says it will be a challenge for him to find work in Kawakawa as most jobs available require manual labour of some sort. He still hopes that he could return to car mechanics one day. (Emphasis added) This report referred to a functional assessment that had revealed; Wrist and hand range of movement greater than three quarters in all directions. Good neck and shoulder range of motion. Once the vocational independence process got underway Mr Anderson's GP was asked to respond to a questionnaire which he did. Points made in that including that: There had been secondary depression related to the loss of independence etc. Mr Anderson had no formal work skills, He could work in a job that did not depend heavily on his forearm being dominant, for otherwise its use would lead to pain. He had a problem of intolerance to medications; and, under the heading "additional comments", this; This man has had complete breakdown ... as this is a major life event for him ... he has a very keen passion to work and is reliable so if can get past his attitude ... underlying ... fear and sense of hopelessness ... he should be a good candidate to assist, A VIMA was prepared by Dr Kangi, occupational medicine physician, who concluded that vocational rehabilitation was complete and that Mr Anderson had capacity to undertake then identified work types for more than 30 hours per week being (out of the 19 that had been suggested) those of: Sales assistant - motor vehicle parts and accessories. Bicycle mechanic. Product assembler. Rental salesperson - vehicles. Meter reader. Ms Brock later arranged for an assessment from Dr Rod Nicholson, also an occupational medicine specialist. His observations in respect of the supported (by Dr Kangi) work types were these: Sales assistant - motor vehicle parts and accessories - physical requirements within his capacity but with Mr Nicholson having concern for his lack of customer service experience. Bicycle mechanic - repetitive use of the left forearm likely to aggravate his symptoms, so could only do this work intermittently and/or part time. Product assembler - repetitive tasks e.g. welding, soldering, braising, riveting or grinding as well as lifting likely to aggravate his left hand area problems. Rental salesperson (vehicles) - physically capable but, with no customer service experience: reportedly got nervous around customers, (The reference being to his work trial as a vehicle valet which was with a rental company). Meter reader - physically capable. Responding to the question "Is it your opinion that Mr Anderson has completed all rehabilitation at this point?" Dr Nicholson wrote: The main focus at this stage is that of Rowin finding suitable work whereby he is not required to use his left arm performing heavy lifting, repetitive movement, forceful movement or repetitive movement. Of the 5 jobs identified there are 2 that require him to perform physical activity which is likely to aggravate his symptoms. The sales jobs require him to have customer service experience and skills which Rowin believes he is lacking. It may be appropriate therefore for Rowin to be given training in this field. Rowin also informs me that he left school in the 3'd form but is competent in reading and writing. Case for Mr Anderson [8] It will not have gone unnoticed that Dr Nicholson, while discounting (medically speaking) capacity on the part of Mr Anderson to perform 2 of the job types supported by Dr Kangi, effectively concurred with him in upholding the other 3. [9] It was obviously on that - a plain impediment to Mr Anderson's case - account that Ms Brock's ultimate submissions, as I understood them, were framed as follows: That his IRP had not addressed all his needs, in particular in the area of vocational or social rehabilitation - refer ss 76(a) or (b) and 80 and 85 of the Act. His case had never been properly investigated by a neurosurgeon who might have been able to reconstruct the nerves. No vocational goals have been set concerning Mr Anderson how he would achieve vocational independence. No computer training was offered. It was beyond his medical brief to comment on vocational competence matters. His learning disabilities in regard to reading and writing were not addressed. The Corporation failed to advise that he was entitled to have a representative involved in his plan, which in this case should have been his GP. The plan had always been disputed insofar as it was suggested that it had been finalised. [10] In any event - so Ms Brock argued - Dr Kangi's report was flawed, not only because Mr Anderson was denied his "right"" to help choose his assessor, but because: His reference to Mr Anderson not being on prescribed medication indicated he considered nerve pain now to be minimal. He had acknowledged that Mr Anderson struggled even to do basis household chores. Yet it did not identify chronic pain with which Mr Anderson lived; nor either His depression or deafness in one ear; and It did not offer a cogent rationale for the conclusion that Mr Anderson had capacity such as would allow him to increase his working hours to 30 or more; and in that respect The report did not align with that of Dr Fenton who had stated in the IMA (affirmed by the GP) that Mr Anderson was not capable of undertaking any job in his current state. There is no basis for any quarrel with the Corporation's selection of Dr Kangi. Mr Kangi's report did not display objectivity. [1 1] Ms Brock also put in issue the reviewer's determination that no costs be awarded at review. Case for Corporation [12] Counsel first of all noted that: The relevant provisions for assessment of vocational independence were found in ss 107-113. Pursuant to s 107(1) the Corporation could determine a claimant's vocational independence where that claimant was in receipt of weekly compensation. By s 6 Vocational Independence was defined as: Vocational Independence In relation to a claimant means the claimant's capacity as determined under section 107 to engage in work: (a) For which he or she is suited by reason of experience, education, or training, or any combination of those things; and (b) For 30 hours or more per week, [13] After referring to each of the other statutory provisions that are relevant, Ms Becroft rightly observed that issues of vocational independence had been extensively canvassed in this Court which had repeatedly emphasised that an holistic and common sense approach was required. [14] Thus the correctness or otherwise of the decision would come down to the robustness of the process, the assessments themselves and a consideration of whether, in all the circumstances, the decision made sense. [15] Speaking of the 8 July 2011 VIOA (which had identified 19 job options) Ms Becroft sought to categorise that as illustrative (in terms of Mr Anderson's own reactions to the various job types) of the position being that his concerns in relation to work ability were in truth based almost exclusively on perceptions of medical limitation rather than vocational capacity or capability. [16] The 28 July 2011 VIMA of Dr Kangi followed a clinical examination and review of historical material, together with an acknowledgment of then presenting symptoms. A quantification of functional limitations was set out and it had led to the identification of 5 of the 19 job options as suitable - this because each had physical variety with no undue loading or other physical demands that would adversely affect Mr Anderson. [17] As to the appellant's medical report, Dr Nicholson was of the view that Mr Anderson had received sufficient treatment but should continue to take part in an exercise programme. Of the 5 job options identified by Dr Kangi as being within Mr Anderson's physical capabilities, he questioned the bicycle mechanic and product assembler work types because of the need for repetitive movements. But he nevertheless agreed (as regards medical sustainability) with Dr Kangi in respect of the other 3 of the 5 job types. [18] Counsel was at pains to press that Ms Brock's argument of insufficiency of appropriate rehabilitation fell down in the face of Mr Anderson's own specialist, Dr Nicholson, not supporting the idea of a need for further rehabilitation, including in the pain management area. [19] The initial occupational assessor had clearly identified a range of transferable skills and there was no legislative requirement for upskilling. [20] Lastly, on costs, it was submitted that the reviewer had been entitled to conclude that the review was unreasonably brought because the expert evidence of Dr Nicholson effectively supported - in quite sufficient degree - the Corporation's decision. Discussion [21] I will begin, as it were, at the end with a more particular reference to the reports of Dis Kangi and Nicholson. [22] I first of all note that Dr Kangi very obviously paid attention to pain issues, he having recorded careful notes in this respect at p 3 of his very comprehensive report. Significant here are the references to a pain that is "dull and constant" in the left forearm and intermittent aching in the left elbow and wrist, but that being rated by Mr Anderson at no more than 1/10. [23] I also count it significant that, quite obviously, Dr Kangi very thoroughly examined Mr Anderson physically and, equally carefully, interrogated him concerning day to day activity levels. And under that heading his main observations of a range of physical capacities were "unrestricted" or "nil". It was only in the categories of lifting, carrying and pushing that he registered "partly" [24] He also unreservedly expressed the view that vocational rehabilitation was complete and that there were no outstanding issues, And that he then proceeded to discount as medically sustainable all but 5 of the initially promoted work types, demonstrated that Dr Kangi had taken a cautious - a conservative and measured - approach. [25] Coming then to Dr Nicholson, he wrote with an obviously well informed appreciation of the medical history and he included reference to the congenital deafness in one ear. [26] Consistent, I thought, with Dr Kangi's view on the issue of pain he wrote: He [Mr Anderson] experiences ongoing dull constant pain with some tingling in his forearm and hand which is aggravated with the use of his left forearm and hand, particularly with pushing, pulling, lifting or repetitive movement. 27] These were difficulties picked up by Dr Kangi and which, plainly enough, had contributed to him discounting 14 of the 19 job types that had been proposed. 28] I briefly come back to the matter of the deafness in one ear because it was a point raised by Ms Brock, On this Dr Nicholson simply makes the obvious comment that it would cause difficulty when people came at, or talked to him from, his left side. [29] But there is no medically identified by Dr Nicholson reason for that to stand in the way of the sustainability of the job types that, in the end, he has supported - the 3 he so selected from the 5 Dr Kangi had upheld. [30] As to rehabilitation, this is what he said; The main focus at this stage is that of Rowin finding suitable work whereby he is not required to use his left arm performing heavy lifting, repetitive movement, forceful movement or repetitive movement. Of the 5 jobs identified there are 2 that require him to perform physical activity which is likely to aggravate his symptoms. The sales jobs (those which Dr Nicholson in fact supported) require him to have customer customer service experience and skills which Rowin believes he is lacking. It may be appropriate therefore for Rowin to be given training in this field. Rowin also informs me that he left school in the 3" Form but is competent in reading and writing. [31] Appreciating, as I do, that the approach in this Court to vocational independence seeks to be a commonsense one, it nevertheless remains the case that it was not the place of Dr Nicholson to talk about job skills as opposed to medical capacity to sustain identified types of work. [32] In any event, and at this point, I turn back to the Independence Assessment; Claimant questionnaire which Mr Anderson signed on 20 June 2011. I see that he did not respond one way or the other to the effective invitation to comment on any "difficulty following verbal or written information", but judging by his responses to other questions, he would have no particular difficulty with a written document. [33] Going back then to the Vocational Independence Occupational Assessment report of 8 July 2011, I note the care taken to obtain from Mr Anderson a full work history and I particularly mention this advice from the provider of that report: And see also [35] below. While employed as a mechanic's assistant, apprentice mechanic, labourer, dairy farmer and wood cutter Mr Anderson has demonstrated his interpersonal/communication skills in the following ways: Assisting and advising customers Listening to customers and employees' needs Able to work closely with other members of a team Conveying information clearly and accurately Answering the telephone Bargaining and collaborating to achieve a common goal Basic negotiating skills Consulting with management and staff on issues Customer service skills through telephone and face to face contact. [34] These, to me, identify the very kinds of skills that the job types upheld by both Dr Kangi and Dr Nicholson would require. [35] There is then reference under the heading "Literacy and Numeric Skills" to Mr Anderson having demonstrated: ... his literacy and numeric skills through his roles as a mechanic's assistant, apprentice mechanic, labourer, dairy farmer and wood cutter, These include: Checking deliveries Reading for information Assisting in stocktaking. [36] There is also reference to Mr Anderson having, at the time of that report, rated himself as having basic computer skills in; Microsoft Word Microsoft Excel Internet Email Programming. I add, in terms concerning the provider's advice in respect of the various job types from a proficiency point of view, that great care is obvious in the consideration of each in relation to Mr Anderson's situation. [37] I particularly note the observations that: Rental salesperson (Vehicles) - no formal qualifications are required and, with on the job training and support, there is no vocational reason why Mr Anderson should not take up this role. Meter reader - he has checked the accuracy of the given paperwork, demonstrating an eye for detail and the relevant record-keeping skills required for this position. He has the necessary transferable skills for this role to read electric, gas or water meters, record usage, inspect meters and connections for defects and damage, and report irregularities as he has good organisational and interpersonal skills and can work alone. No formal qualifications are required. Mr Anderson has the transferable skills and there is no vocational reason why he should not take up this role. Sales assistant (motor vehicle parts and accessories) - he has demonstrated his customer service and communication skills, as well as his specialist knowledge of the products and services in this field. For entry-level positions, on the job training is sufficient. There is no vocational reason why he could not work in this role. [38] Ms Brock had proposed that Mr Anderson's case had never been properly investigated by a neurosurgeon who (so she asserted) might have been able to reconstruct the nerves, but there is no useful medical evidence as identifies any utility in such a line of investigation. [39] As to the contention that no computer training was offered Mr Anderson has, as I have recently recorded, acknowledged basic skills in this area and any utility in the proposition that no vocational goals were set for him falls away in the face of what is apparent from the Vocational Independence Occupational Assessment report that I have so recently canvassed. [40] I am troubled by the assertion that Dr Kangi's report did not display objectivity when that has been put forward without any apparent basis at all. Advocates, no less than lawyers, must take extreme care - act with a high level of responsibility - in presenting arguments that may reflect adversely on parties or witnesses. There must in every instance be a very good case to support such arguments, and none at all is obvious here. [41] Turning to other matters, Ms Brock sought to call in aid the much earlier (in terms of the time-line) IMA of Dr Fenton, But what is apparent, when his report of 17 November 2010 is compared with the much more recent ones of Dis Kangi and Nicholson, is that in the intervening period (quite considerable when it came to Dr Nicholson who reported as recently as 4 February 2012) Mr Anderson had obviously made substantial and real progress. [42] Determining vocational independence is a serious question for reasons obviously including the consequences of a finding that that has been achieved - that when it comes to issues of entitlements, particularly to weekly compensation. [43] So I remind myself that the definition of vocational independence is only met when there is clear and compelling evidence of the ability of the claimant to engage in work for which he or she is suited by reason of experience, education, or training, or any combination of those things, and for 30 hours or more per week. [44] It is in fact quite obvious to me - after a careful consideration of the evidential materials and after then, metaphorically speaking, standing back and looking at the whole case - that the Corporation's August 2011 determination (upheld on review) that Mr Anderson had reached vocational independence was entirely justified [45] It matters not that that finding was based on 5 job types identified by Dr Kangi as medically sustainable, but only 3 of those were supported by Mr Anderson's own expert - for the identification of vocational independence in but one job type is all that is requisite. [46] All in all, I am perfectly satisfied that Mr Anderson was, as of 10 August 2011, vocationally independent. Costs at review [47] I see no sign that, in refusing costs, the reviewer took into account some irrelevant matter or failed to give due attention to any that was relevant. [48] Most certainly, I see nothing at all to indicate that the decision to refuse costs was plainly wrong. [49] In fact, so I would suggest, the Court's subsequent analysis of the merits serves to underscore that the reviewer's costs decision was entirely appropriate. Result [50] The appeal is in all respects dismissed. Roderick Joyce . District Court Judge