Blackie v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT DUNEDIN Decision No. 5 3 /2010 IN THE MATTER of the Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN STEPHEN RAYMOND BLACKIE Appellant (Al 147/09) AND THE ACCIDENT COMPENSATION CORPORATION Respondent HEARD at DUNEDIN on 3 March 2010 APPEARANCES Ms T Geraghty, counsel for appellant. Mr I Hunt, counsel for respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE ] The issue in this appeal arises from the respondent's decision of 6 May 2008 whereby the respondent determined that the appellant's vocational independence had not deteriorated due to his assessed injuries and that he still retained vocational independence in respect of two work-types. [2] It is the appellant's contention that his constant back pain and bladder problems are such that he cannot sustain full-time employment in any work type. [3] The background facts relevant to the issue in this appeal may be stated as follows: At the time the respondent made the decision now in issue the appellant was aged 43 years. 2 The appellant has a history of back injuries, the first being suffered in 1985, then again in 1991 and again in 1996. Following the 1996 injury which caused spondylolisthesis at L5/S1, that injury required surgical intervention with a lumbosacral fusion carried out by Mr Bruce Hodgson, Orthopaedic Surgeon, on 22 April 1998. The appellant attempted to continue in work following recovery from that surgery but he continued to suffer significant back pain and he was unable to continue with the heavy labouring work required as a fisherman, which had been his employment. The appellant ceased work in May 2001, being accepted as being incapacitated, and commenced receiving weekly compensation. in 2003 the appellant underwent Vocational Independence Assessment. By decision dated 7 July 2003 the respondent determined that the appellant had attained vocational independence in three work-types, namely - Accounting and bookkeeping clerk; Statistical and finance clerk; Sales representative. His weekly compensation therefore ceased three months thereafter. In September 2006 the appellant's GP, Dr Ruth Barnett, wrote to the respondent advising of new symptoms from which the appellant was now suffering, namely increased back pain, gastrointestinal dysfunction and bladder dysfunction. It was her advice that the appellant was not fit to hold down any job. The respondent investigated the appellant's claims and on 16 May 2007, it accepted cover for the medical condition of hypotonic bladder as a consequence of his covered back injury. 3 By further decision dated 29 September 2007 the respondent accepted cover for gastric motility disorder caused by the methadone that the appellant was taking to manage his pain from his back injury. At this time the respondent accepted that there were reasonable grounds for believing that the appellant's vocational independence may have deteriorated and therefore agreed to reassess his vocational independence pursuant to section 109(2)(b). A Vocational Independence Occupational Assessment dated 1 October 2007 identified seven work-types as being suitable for the appellant having regard to his education, training and experience, two of those work types being Forest Manager and Clerical and Administrative Worker. The appellant was then referred to Dr Jonathan Wright for a medical assessment. Dr Wright carried out an assessment on 8 October 2007 and his assessment identified that the appellant was capable of working 35 hours per week in the work-types of Forest Manager and Clerical and Administrative Worker. On 6 May 2008 the respondent issued a decision determining that the appellant still had vocational independence in relation to the two work-types identified. The appellant sought a review of that decision and a review hearing took place on two dates, namely 22 September 2008 and 24 February 2009. For the purposes of that review the appellant introduced a medical report from Dr Michael Anderson, Specialist Physician in Occupational Medicine and Consultant Physician in Pain Management. The respondent, for its part, introduced a further response from Dr Wright. 4 In her decision dated 13 March 2009, the Reviewer, Ms K Stringleman, adopted the principles previously stated in the High Court decision of Ramsay and determined that there was no clear and cogent evidence which gave rise to serious doubt about the assessments so made, and therefore the respondent's primary decision was confirmed. The only further medical evidence introduced for the purposes of this appeal has been an assessment made by Dr Gordon Hancock in relation to the appellant's Whole Person Impairment for the purposes of an Independence Allowance. [4] Counsel for the appellant's submissions concentrated on Dr Wright's medical assessment and the contended shortcomings thereof, particularly having regard to the report of Dr Anderson to the contrary. The Court has also been referred to earlier medical reports of 2001 and 2002 relating to the appellant's medical condition at that time. [5] The appellant had been under the care of the Dunedin Hospital Pain Clinic since August 2001, and a senior member of that Pain Clinic was Dr Anderson. He first provided a report on the appellant's condition on 29 August 2001. His report noted that the appellant's principal pain relief medicine was Methadone, and his overall impression was that the appellant had a persistent pain problem arising from a mechanical source at the site of his previous surgery. [6] The Court has also been referred to a report from Mr Bruce Hodgson, Orthopaedic Surgeon, dated 21 February 2002. Mr Hodgson had been the surgeon who carried out the lumbosacral fusion on the appellant in April 1998, and his assessment of the appellant's condition in February 2002 was that the appellant had not made a good recovery and continued to suffer low back pain and left-sided sciatica, numbness from his waist down and cramps into his lower abdomen and with instability of his bladder. He expressed concern at the progression of the appellant's symptoms over the three years that had elapsed since surgery. Mr Hodgson also gave his opinion of the appellant's physical abilities in relation to various functions. 5 7] In a subsequent letter to the respondent in August 2002 Mr Hodgson advised that, following an MRI scan, it was his opinion that no further surgical intervention could be offered. ] Coming forward to 2006, the appellant's GP, Dr Ruth Barnett, wrote to the respondent about her considered view of the appellant's deteriorated physical condition. She noted that the appellant was currently troubled by back pain and gastrointestinal and bladder dysfunction. She advised that both the gastrointestinal and bladder dysfunction problems had escalated to such an extent that she considered him totally incapacitated. She noted that the appellant was currently self-catheterising in relation to his bladder dysfunction problems. (9] The appellant's medical records also note that on 28 November 2006 he was admitted to Dunedin Hospital with acute abdominal pain and worsening back pain. It was noted also that he suffered from urinary incontinence as well as faecal incontinence. He was discharged on 1 December 2006 with no change made to his medications. [10] As earlier noted, Dr Jonathan Wright conducted a Vocational Independence Medical Assessment on 8 October 2007 and his report noted the various aspects of the appellant's medical problems including his hypertonic bladder and urinary dysfunction. Under various headings Dr Wright made the following comments on the appellant's condition: Pain details At the moment he has pain at about 5-6 out of 10 (on a visual analogue scale of pain with 1 being minimal pain and 10 being the worst pain imaginable) He has pain down both legs and radiation up to the mid thoracic spine. The pain also spreads to the left iliac fossa and also the back of both legs, the left leg more than the right leg and into the feet. The pain will wake him up regularly through the night. Summary of injury, treatment and further planned rehabilitation Stephen is a 43 year old man who first injured his back on 1.5.96. He has had surgery to his back involving a fusion that was initially partially successful but he has gone on to develop ain both in his back and down both legs. He has documentary evidence of a neurogenic bladder and now requires to self-catheterise. His pain is controlled on Methadone 150 mg daily (a reasonably high dose) and there is some evidence that this causes indigestion and alternating diarrhoea and constipation. No specific cause has been found for his indigestion other than the possibility of Methadone. He has been diagnosed with depression in relation to his chronic pain and is currently on treatment for this. No further rehabilitation is planned. 6 Discussion and opinion Stephen presents with several problems that all appear to be related to his lower back. Back injury He has been recently (last year) seen by Mr Hodgson who was of the opinion that the fusion was solid and that there was no impingement on any nerves that would be amenable to surgery. Surgery is therefore not an option. Urological Stephen has been reviewed by the urologists and taught how to self catheterise. He has virtually no sensation in the bladder and manages to self catheterise successfully himself. He is tolerating this and is independent in terms of performing this function. Gastroenterology Although his constipation and diarrhoea cause problems, blems, he is also able to manage this on his own with the use of intermittent manual evacuation and medication. Chronic pain His pain is controlled with methadone at 150 mg daily and this is a large dose. I suspect this s causing some problems with his indigestion, constipation and could also be contributing to his fairly low weight. He has pain over the Coccyx that I think is related to referred pain in relation to the same cause of the damage to his bladder innervation (i.e. S2,3 and 4). Depression/Pain I think that Stephen has developed a complex regional pain syndrome in relation to his lower back. He has become depressed due to a number of factors as outlined in Dr Jubilee's report. [i1] Dr Wright's comments on the two work-types which he found the appellant was capable of undertaking, were as follows: Forest Manager Based on the information in the work-type sheet , this work involves sedentary to light physical demand work with frequent to constant sitting in offices or in meetings. However, standing and walking frequently about the office and operations area are also required. Lifting, carrying or pulling is not a significant component of the job. Bending, squatting or crouching is not a significant feature of the job. This type of work would allow variation in position and does not involve strain to the lower back. Having considered the nature of the work, his current functional capacity and his level of pain, I am of the opinion that he would be able to medically sustain such work on a full time basis. 7 Clerical and administrative worker Based on the information in the work-type sheet, this work involves sedentary work with constantly sitting at a workstation and carrying out a variety of both manual and computerised data entry. Repetitive arm, hand and finger movements are required. The work also allows for occasional standing and walking about the office. Such work would therefore allow occasional stretching and would not strain his back. Having considered the nature of the work, his current functional capacity and the level of his pain, I am of the opinion that he would be able to sustain such work on a full time basis. [12] Following the respondent's primary decision, Ms Geraghty representing the appellant, wrote to Dr Wright and posed a number of questions to him. His responses to those questions were as follows: 1. The position of forestry manager involves working in offices and in meetings. it does not involve hands-on forestry block work, (ie heavy lifting chainsaw use, pruning etc). Therefore, although he may visit sites, the work is predominantly office based as described in the work detail sheet. As such, he would reasonably expect to have access to toileting facilities within an office working situation. With toileting should be hand washing facilities as required for hygiene. In my opinion, this would allow him to self catheterise as require with reasonable precautions taken for hygiene that would be available in an office toilet. 2. As above, the position of forestry management would have access to toileting facilities in an office situation which is the predominant role. 3. While I appreciate that he would be likely to be spending more time on toileting, I do not think this would significantly impact on his ability to work for 35 hours per week. Many people with significant urinary and bowel problems, are able to manage colostomy sites and catheters given reasonable access to toileting which I agree is required. 4. at Mr Blackie requires to stand up and move around from time to time. In the normal course of office work, this does occur and therefore I do not see this as being a significant restriction. 5. No, I do not accept that he requires to llie down after periods of sitting. I do accept that he needs to change position from sitting and would need to change to standing or walking before sitting down again. 6. I accept that Mr Blackie has pain. In my opinion, his pain is reasonably well controlled with his methadone. Many people do attend work with significant levels of pain and are able to do so consistently without causing further injury. Pain in itself, is not a contraindication to attending work. 7. In my opinion, Mr Blackie's chronic pain is reasonably well controlled with his methadone. His depression is controlled with fluoxetine. I believe his level of concentration is such that he has the capacity to concentrate for significant periods of time and sufficiently to cope with clerical or managerial work for 36 hours per week. 8. I believe that Mr Blackie would be able to cope with a clerical or administrative role for 35 hours per week or more. This is my opinion after consideration of the information supplied to me and after interviewing him myself. 8 9. I noted my report that Mr Blackie has good musculature across both shoulder with no evidence of wasting. His hands indicated a significant degree of recent physical activity. I do not believe that the jobs that I have opined as suitable would involve heavy lifting or stretching up on a repetitive basis and therefore would not cause any further problems to his shoulder injury. 10. I believe that his pain is sufficiently well controlled with medication. I believe that his depression is also sufficiently well controlled to allow him to function as a forestry manager or in a clerical person (sic) for 35 hours per week. [13] Counsel for the appellant then sought the opinion of Dr Anderson and he was provided with a copy of Dr Wright's assessment for reference. In his report dated 9 November 2008, Dr Anderson stated, inter alia, as follows: Theoretically, there would be no problem with Mr Blackie working 35 hurs a week at these jobs providing he was pain free (or his pain was at a very low level). However Mr Blackie has been a patient at the Dunedin Hospital Pain Clinic since 2001, some 7 years, and while he is taking medications for his pain he has some degree of pain control. However, one of the reasons he was referred back to the Pain Clinic in 2008 by his GP was for the problem with his ongoing low back pain management. His pain is partially controlled by relatively high doses of Methadone (certainly not ideal doses) As indicated in my report he is having ongoing pain problems which are exacerbated by sudden movement, or which can occur spontaneously. One of the problems with neuropathic pain is its unpredictable nature and its lack of external stimuli that need to set off the pain. In Stephen's case his pain was worse following his surgery and has continued to be present at a high level of pain activity. This is known as "wind up", events that happen in the Central Nervous System following initial stimulation of the pain system following the surgery. Once it is established it will never completely go and current thinking is that it is more like having Diabetes, there is no cure, but reasonable quality of life can be achieved with good management Good management includes: attention to appropriate medication aerobic exercise programme to keep the patient as fit and mobile as possible attention to other sources of pain such as muscles that are spasming or acting in a over) protective role attention to the psycho-social components that can make chronic pain so much more difficult to manage Following successful management approaches based on the above list, the next step in rehabilitation is the return to appropriate work in a graduated manner. 9 It is unrealistic to expect a person to work a full week when they have not worked for some time. Research in this area indicates that for a person who has been off work for more than 6 months, the chances of returning to work are less than 10%. Consequently, getting a person back to meaningful work is an important part of rehabilitation but is not going to be achieved easily. Current rehabilitation principles try to get the person back to work in a graduated way, e.g. 2 hours a day till this is coped with and then 4 hours, 6 hours etc. Technically Stephen could work 35 hours a week at those jobs if it wasn't for the very factors that you have raised. His pain is exacerbated by sitting still and relieved by getting up and moving around. Having Stephen assessed by a Medical Practitioner who is not taking Stephen's chronic pain problem (which was directly associated with his original injury) into consideration is unlikely to have a beneficial outcome for the patient. With all due respect, Dr Jonathon Wright is a General Practitioner who carries out assessments for ACC. He has a Post-Graduate Diploma in industrial Health. This is not a Specialist Qualification and Dr Wright is not an Occupational Medicine Specialist. Dr Wright does not work in a Tertiary Level Pain Clinic, and consequently may not have the experience to determine the effect of Chronic Pain on the individual patient.) You asked specific questions: 1. Would Mr Blackie's chronic pain prevent him from sitting for long periods of time? The answer is yes, undoubtedly. Movement is recognised as essential for people with chronic pain and the ability to be able to get up and move when needed would be an essential part of managing pain. What would the likely level of pain and discomfort suffered by Mr Blackie be if he was required to sit for 35 hours per week or more in an office environment? It is impossible to answer this as the level of pain and discomfort is unique to the individual and the situation they are in at the time. In general terms I would be able to say that the likely level of pain and discomfort would be high. 3. Does Mr Blackie's chronic pain and/or depression affect his ability to concentrate and remain focused for significant periods of time Yes, the accepted sequence of events is that chronic pain causes depression (not the other way round). Accompanying chronic pain is disturbed sleep patterns, and this in turn leads to depression. The feelings of depression are also added to by immobility and other psycho-social factors such as the losses perceived by the individual. These include inability to carry out normal work, the inability to attend social events, the loss of leisure time activities etc. 4. Does the medications Mr Blackie is taking to treat his chronic pain affect his ability to concentrate and remain focused for a significant period of time? Again the answer is probably yes, he is on a high level of a strong opioid which is only partially controlling his pain levels. Other medications that have been tried in the past have been accompanied by unacceptable side effects. 10 Are there any other aspects of Mr Blackie's chronic pain and/or depression that would interfere with his ability to work in a clerical administrative role or as a forest manager for 35 hours per week or more? The length of time Mr Blackie has been away from the work force has a direct relationship to the statistical probability of him returning back to work. In Occupational Medicine it is accepted that a person who has been away from the work force for more than 6 months has a less than 10% chance of getting back to the job. Stephen has now been unemployed for 3 years. Rehabilitation principles would dictate that a person trying to return to the work force would have to do this in a graduated way wered whether Stephen can manage 35 hours in a selected job he would need a work trial in these areas to see how he progresses If he could manage 2 hours per day 5 days a week then this can be increased in a step wise manner to 3 hours a day, 4 hours a day etc, i.e. a realistically planned rehabilitation. To make a decision based "on paper" is quite impractical and does not take into consideration all the psycho-social factors directly associated with his injury and subsequent pain mentioned in the reports. [14] Dr Anderson's report was referred to Dr Wright for comment. The first point to note is that Dr Wright acknowledges that Dr Anderson is an acknowledged expert in the field of pain management. Dr Wright's response, in its entirety, is as follows: I have read his report carefully and make the following comments: Or Anderson mentions that current thinking regarding "wind up" pain is more like having diabetes; there is no cure, but reasonable quality of life can be achieved with good management. I agree with Dr Anderson that he is managing Dr Blackie's pain well. He is an acknowledged expert in the field With regard to people being off work for more than six months; I do not accept that this should be a reason why they cannot be considered suitable for rehabilitation and return to full time work. I have seen many patients with similar problems returned to meaningful full-time employment when they have been off work for more than 6 months and indeed much longer. I accept that the chances of early return to work to decrease over time but this in itself should not be (sic) automatically apply to every person and deny them the opportunity to eventually return to work. Continuing efforts to get a person back to meaningful work is indeed an important part of rehabilitation and is not easily achieved. Sometimes there are psychological reasons for people to resist a return to work and this involves a whole host of psychosocial factors that had been outlined in my previous report. I agree with Dr Anderson that pain management cannot be treated with surgery, i.e. pain cannot be cut out. I disagree that I have not taken Mr Blackie's pain into account in assessing him. 11 noted for example that Mr Blackie was able to sit throughout most of the interview without standing up. He was able to communicate and concentrate throughout the Interview. I also noticed that he was able to stand up from a sitting position without obvious problems. There were some inconsistencies in his examination when asked to perform certain manoeuvres compared with casual observation and less formal testing. This is often the case when clients are guarding against possible pain rather than demonstrating their true functional capacity. I draw the reader's attention to the complex interaction of psychological effects of pain, injury and compensation issues at play in such a case as this. I do accept that he has ongoing pain but i do not accept that sedentary to light work would aggravate his lower pain causing further injury. The positive benefits of a return to work with its routine and improved self-esteem should not be underestimated and denying him this opportunity is not in my view in Mr Blackie's best interests. With regard to my qualifications, Dr Anderson rightly points out that I am a general practitioner who carries out assessments for ACC as an independent contractor, just as pain services are also contracted out to various providers. I have a post-graduate diploma in industrial health. This is not a specialist qualification and I am not an occupational medicine s dicine specialist. I do not work in a tertiary level pain clinic and this is all true. I take a different view regarding his last comment that I do not have the experience to determine the effect of chronic pain on an individual patient. While I may not be a specialist occupational physician, I am a general practitioner and have a wide background experience of dealing with many patients in the community with chronic pain over many years. I have seen the question of pain, its manifestations and complex effects from many angles and made assessments and advised treatment accordingly, often referring to experts like Dr Anderson and his team when necessary. I feel I am entitled to my opinion and having considered all the information supplied to me, including Dr Anderson's report and examined Mr Blackie, I do not wish to amend my report. I accept that Dr Anderson has a different opinion [15] The final medical report which has been submitted on the appellant's behalf is that of Dr Gordon Hancock, Occupational Medicine Specialist. He was instructed by the Corporation to carry out an impairment assessment of the appellant for the purposes of an independence allowance. It is to be noted that by the time of this assessment the appellant had also obtained cover for the mental injury associated with his physical injuries. The result of Dr Hancock's assessment was that the appellant had a Whole Person Impairment of 68% in relation to physical impairment from his injuries, and a further 20% for his mental injury, which when combined under the AMA Guides gave a final Whole Person Impairment of 74%. Dr Hancock's assessment was peer reviewed by Or Alan Walker and that assessment was confirmed. The final breakdown being 60% for the back injury, 20% for gastrointestinal impairment and 20% for mental injury. [16] Ms Geraghty, Counsel for the Appellant, submitted as follows: . The assessment of Dr Wright is materially flawed. His contention that the work-type of Forestry Manager would include a hygienic environment in which 12 the appellant could self-catheterise, is not in accord with the description from the Work Details Sheet which noted that the position required frequent work outdoors in a dirty, dusty environment. The appellant is incontinent and has a severe bladder and bowel dysfunction. . Dr Wright's view that pain itself is not a contraindication to attending work indicates that the assessor is minimising the significance of pain and is not taking proper account of its possible effects on the appellant's ability to sustain work. The report and opinion of Dr Anderson should be given greater weight, he being the expert, and his opinion being that the appellant's significant pain does affect his ability to work and to remain focused. The medical assessment of Whole Person Impairment identifies that the appellant only has a quarter of his normal function. The medical evidence identifies that the appellant has suffered deterioration of his covered injuries since the original assessment of vocational independence and the fact is that these new aspects of his injuries have meant that further rehabilitation would be required before he is in a position to consider full-time employment. [17] Mr Hunt, Counsel for the Respondent, submitted as follows: . Dr Wright has fully considered the issue of the appellant's chronic pain and its limitations and has made his assessment with full knowledge of its limitations. . The Forestry work-type is essentially office-based and toileting would not significantly impact on his ability to work. . Dr Anderson is not questioning the decision on the basis of toileting or catheterising. 13 . In his response to Or Anderson's comments Or Wright squares up and gives reasons why he came to the decision he did. The factors in issue have been fully considered. . On the question of pain Dr Wright considered that the sedentary light work which the two work-types involved would not aggravate his pain situation and the medical evidence was that his pain was well-controlled. . The Corporation does not have an obligation to consider further vocational rehabilitation until such time as the appellant was considered not to be vocationally independent. . Dr Anderson simply has a contrary opinion but his opinion does not identify any flaw in Dr Wright's assessment. DECISION [18] The issue in this appeal involves a determination of the correctness or otherwise of the respondent's decision which it made on 6" May 2008 that, after a reassessment, the appellant still maintained the status of being vocationally independent within the meaning of the Act. [19] In terms of Section 109 of the Act, it is the case that the respondent accepted, on reasonable grounds, that the appellant's vocational independence may have deteriorated and so therefore it implemented a full reassessment to see whether in fact that was the case. (20] In so doing, I find that the respondent carried out the necessary procedure required of it by Section 109 and no complaint can be had of the course of action which it took following receipt of the letter from the appellant's GP, Dr Barnett, suggesting that a deterioration had occurred. [21] In the course of their submissions both counsel referred to the descriptions of the two work-types given in the Occupational Assessment. For the work environment of a Forestry Manager, it was stated as follows: 14 Frequently works indoors in offices and meeting rooms. Frequently works outdoors visiting forestry operations. . . Internal work spaces will usually be well heated, ventilated and clean. On-site locations however are likely to be dirty, dusty and noisy. Employees may work in all weathers, conditions can potentially be hazardous. The work function/activity was said to include as follows: The work has a sedentary to light physical demand with frequent to constant sitting in offices or in meetings Stands and walks frequently in office and operations area. On-site walking may involve negotiating difficult/ uneven terrain. The only point made by counsel in relation to the Clerical and Administrative Worker's description was the work functions being: Constantly sits at a workstation and carries out a variety of both manual and computerised data entry and word-processing tasks. Occasionally stands and walks about the office. [22] In Dr Wright's assessment of the appellant's suitability as a Forest Manager, his reasoning, which has been set out earlier in this Judgment, he makes no mention of the outdoor component and the dirty, dusty environment that it contains. His further explanation as given to Ms Geraghty in his follow-up letter, he simply takes it for granted that any situation that the appellant was in would enable safe and hygienic self- catheterisation. [23] On the issue of the appellant's pain, Dr Wright seems to base his opinion on the understanding that the appellant's pain is reasonably well-controlled by his Methadone and similarly, that his depression is also controlled by medication and that therefore he does have an ability to concentrate for significant periods and sufficiently to cope with 35 hours of work per week. [24] It is this aspect with which Dr Anderson takes issue, he being more intimately involved with the appellant's medical condition, and as Dr Wright acknowledges, an expert in this particular field. [25] It is Dr Anderson's clear view that the appellant's pain is such that it is unrealistic to expect him to be able to work full-time and that a significant rehabilitation period would need to be completed. It must be remembered that the increase in the appellant's pain, 15 together with the associated gastrointestinal problems, have all occurred since the original Vocational independence determination was made in 2003. [26] Whilst I accept Mr Hunt's submission that the respondent had no obligation to provide any such rehabilitation, it does have an ongoing obligation to provide treatment and it would be that specific rehabilitation could be claimed if the appellant were no longer considered to have vocational independence. [27] This is a situation where the opinions of two specialists are significantly apart, and it would be the case, of course, that if Dr Anderson had been making the assessment under the Act he would undoubtedly have identified that the appellant did not have the physical ability, from a medical perspective, to undertake the work-types nominated. [28] if the position was simply a consideration of Dr Wright's opinion as opposed to Dr Anderson, even giving Dr Anderson the edge for his experience, the respective positions of the appellant and the respondent could well be considered to be reasonably equal. However, I find that the undisputed fact that this appellant has a 74% Whole Person Impairment, as identified from the criteria contained in the AMA Guides, puts a whole new perspective on the matter. [29] The fact of the matter is that this appellant has a lumbosacral impairment under the AMA Guides which is DRE Category VII. At page 103 of the Guides, the description of a Category VII is stated as follows: Cauda Equina-like syndrome as defined in Category VI is present and the patient has bowel and bladder involvement requiring an assistive device. A Cauda Equina-like syndrome identifies a partial loss of lower extremity function bi- laterally. It may or may not have loss of motion segment integrity. [30] It is the case that Category VII is the second most serious on the scale, with Category Vill involving paraplegic and giving 75% Whole Person Impairment. [31] In addition to that impairment the appellant has been identified as having two other significant Whole Person Impairments, one being described as "mental" and as noted by Ms Geraghty in her submissions, the combined Whole Person Impairment is 74%, an extremely high Whole Person Impairment in my assessment. This Court has frequently been required to consider WPI assessments under the AMA Guides, and it is the case that 16 even modest assessments of 20% or less are contended for as being significantly disabling. [32] Looking at the circumstances of this appellant in the round, I find that it is quite unrealistic to make a finding that he is capable of full-time employment in any work-type. The nature of his disabilities and significant day-to-day, or even hour by hour problems are such that I find he cannot be regarded as being a person who has employment potential on a full-time basis. [33] It may have been the case that if Dr Wright had had the benefit of the Whole Person Impairment assessment conducted by Dr Hancock, confirmed as it was by another specialist, he may not have come to the conclusion he did. [34] in all the circumstances I find that the evidence establishes that the appellant no longer has vocational independence by reason of the deterioration of his covered injuries, and that his status should therefore again be considered to be that of a person wholly incapacitated, with such status to take effect as from 6 May 2008. [35] The appellant being successful I allow costs in the sum of $2,500 together with any qualifying disbursements. DATED this 31st day of March 2010 M J Beattie District Court Judge