Matuauto v Accident Compensation Corporation

IN THE DISTRICT COURT [2012] NZACC 32 6 HELD AT WELLINGTON IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN TAUNUU MATUAUTO (ACR 130/12) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at WELLINGTON on 18 September 2012 APPEARANCES Ms M Bagnall, Counsel for Appellant. Mr A D Barnett, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 15 November 2010, whereby it determined that the appellant had attained vocational independence in respect of three work-types, and as a consequence of which his weekly compensation entitlement ceased. [2] It is Counsel for the Appellant's submission that the vocational independence decision is flawed, as it failed to take into account the appellant's mental injury, being a medical condition for which the appellant subsequently obtained cover by decision dated 13 September 2011. (3] It should be noted that the respondent's initial decision determining vocational independence was dated 30 June 2010, but that decision determined that the appellant was capable of working 30 or more hours per week in the three work-types identified, where it was the case that as of the date of that decision the number of work hours 2 required per week were 35, and it was because of this error that the respondent issued its second decision on 15 November 2010 remedying that error. [4] The relevant background facts are that in March 2008, when the appellant was aged 50, he suffered a back injury during the course of his employment as a builder when he was lifting a concrete fence base. He was off work until May 2008, but not long after his return in June 2008, he again experienced the onset of pain while again involved in a lifting action. [5] The appellant was identified as having disc bulges at L4/L5 and L5/S1. He was unable to return to his pre-accident employment, but it was identified that he was able to engage in work not involving heavy physical activity. In January 2009 it was identified by an orthopaedic surgeon that surgery was not the best option for him, and it was recommended that he move to a lighter form of employment. [7] Throughout 2009 the appellant went through various Work Preparation and Work Ready programmes which included work trials. [8] In May 2010 the appellant underwent a Vocational Independence Occupational Assessment, and that assessment identified ten different work-types that were suitable for the appellant having regard to his transferable skills and work experience. (9] On 14 June 2010, the appellant underwent a Vocational Independence Medical Assessment with Dr James Harman, Occupational Medicine Consultant. Dr Harman identified three work-types as being medically sustainable, and it should be noted that Dr Harman made his assessment on the basis that the appellant would be able to sustain 35 hours or more per week in each of the work-types. Thus, his assessment was made having regard to the correct weekly hours that were then in force under the Act. Further reference to Dr Harman's report will be made hereafter in relation to the matter which is in issue in this appeal, namely the appellant's mental injury. [10] In May 2011 the appellant's GP sought cover for the depression which the appellant was presenting, and on 16 July 2011, at the request of the respondent, the appellant was seen and examined by Dr C Hornabrook, Consultant Psychiatrist. 3 [11] Dr Hornabrook provided a report dated 19 August 2011, and it was his diagnosis that the appellant did have a mental condition of major depressive episode in terms of the DSM IV criteria, and it was on the basis of Dr Hornabrook's report that the respondent granted the appellant cover for a mental injury arising from his covered physical injury by decision dated 13 September 2011. [12] There is one further matter which I consider to be of relevance to the issue in this appeal, and that is the fact that the appellant did make application for determination that his vocational independence had deteriorated due to the granting of cover for the mental injury, and this Court has had presented to it as part of the evidence in this case, a further Vocational Independence Medical Assessment carried out in March 2012 by Dr D Hartshorn, which included the psychiatric report of Dr Hornabrook. [13] It is the case that only two of the three work-types identified in the vocational independence decision in issue were considered by Dr Hartshorn, but he did determine that those two work-types, namely, Building Associate and Property Manager, were medically sustainable by the appellant. [14] As earlier noted, the Vocational Independence Medical Assessment of Dr Harman, carried out on 14 June 2010, identified three work-types as being medically sustainable by the appellant, those work-types being Building Associate, Property Manager, and Recruitment Consultant. [15] Although the Court does not have an earlier medical assessment from Dr Harman, carried out in November 2008, it is relevant to note that he had earlier seen and examined the appellant in relation to his medical sustainability. [16] In his Assessment Report, Dr Harman noted and identified the appellant's low mood and symptoms of depression, and in his report he stated, inter alia, as follows: Mr Matuauto says that he has been low in mood recently. He occasionally feels tearful. He tends to worry a lot. He is more irritable and impatient and recently was in trouble with the law due to an anger outburst. He feels that he has lost considerable confidence since his injury. He tends to be woken in the early hours of the morning by pain and then have difficulty getting back to sleep. His appetite is normal and he has not lost any weight. His energy level is down however and he takes a nap in the afternoon on some days. He feels that he has reduced motivation and concentration. 4 Today Mr Matuauto described significant symptoms of depression. There were also multiple other non-injury somatic complaints which are also possibly mood related. I note that he has recently finished a course of psychological therapy. Mr Matuauto indicated that he has lost confidence since his injury. He feels better symptomatically if he is active and occupied. I feel that Mr Matuauto is likely to benefit from the point of view of his pain and his mood problems if he is able to return to employment as long as he is in an appropriate job. I don't feel that his mood problem would prevent him from being able to work at present. I did however suggest to him that he sees his GP for a further assessment of his mood as may benefit from an antidepressant medication. As he has just recently completed a relatively long course of psychological therapy I don't feel that a further course of treatment is indicated at present. [17] In his report of the appellant's mental condition, Dr Hornabrook identified moderate major depression, and he further stated as follows: . .. Mr Matuauto's depression seems to have arisen within the context of chronic low back pain and his social circumstances of loss of function and occupation as a builder as a result of the back injury. He has no previous psychiatric or substance abuse history that would otherwise account for the development of these symptoms. I noted that Mr Matuauto's overt expression of depressive symptoms could also be seen in the light of his transfer from ACC to WINZ support. I suspect that combination of his Samoan culture, embarrassment at relinquishing his role as a salary earner and inability to make the transition to a supervisory role in the building industry (which he has identified himself as being part of all his life) might well have contributed to worsening of his mood and pain symptoms. I suspect the onset of his depre is depression pre-dates the shift from ACC to WINZ but at the time of writing this report I do not have evidence to absolutely confirm this. I have advised him to reconsult his GP and reconsider a trial of antidepressant medication alongside psychological therapy (CBT focus). Despite his initial antipathy for medication (not furnishing the prescription of Prozac given some months ago), I suspect that if he was engaged in an explanation of interplay of symptoms of pain, anxiety and depressive symptoms, including beneficial and side effects he would be compliant with treatment. . . . [18] Dr Harman was asked to comment on Dr Hornabrook's report in relation to his medical assessment and he stated, inter alia, as follows: . . . My report indicates that I felt that Mr Matuauto was showing symptoms of depression at the time of my assessment and I clearly stated this in my "discussion and opinion" section at the end of the report. In this respect my assessment was in agreement with the report from Dr Hornabrook. I did feel however that there was evidence that he was able to function at a reasonable level in the workplace during his work trial and in fact in my "discussion and opinion": section I stated that he felt symptomatically better if he was active and occupied. I did not feel that his mood problem was in itself a bar to Mr Matuauto returning to an appropriate full time job. In fact, I felt that if Mr Matuauto was able to return to an appropriate job from the point of view of his experience, skill and physical capability then this would most likely have a beneficial effect on his mood. ... 5 [19] He concluded his letter by saying that Dr Hornabrook's assessment did not alter the conclusions that he reached regarding the appellant's Vocational Independence in the work-types he had identified. (20] Ms Bagnall, Counsel for the Appellant, submitted that as a matter of law the appellant's mental injury arose in 2008, that is at the time he suffered the physical injury, and therefore that mental injury was required to be taken into account in the Vocational Independence Medical Assessment. Counsel submitted that the assessment did not include any psychiatric report and she submitted that Dr Harman had not taken sufficient account of the appellant's depression for the purposes of his assessment. [21] Mr Barnett, Counsel for the Respondent, submitted that the absence of a psychiatric assessment before the Vocational Independence Medical Assessment, does not affect the validity of that assessment. He submitted that the Assessor had identified the fact of the appellant's symptoms of depression and he referred to the fact that Dr Harman did have two psychological reports for reference. He also referred to the fact that there was no competing assessment to that of Dr Harman. DECISION [22] In this case the evidence is clear that the appellant was suffering from psychological conditions at the time of the Vocational Independence Assessment and had been so for some time, and i find it is clear that Dr Harman was aware of that state of affairs when he carried out his assessment. [23] It is also the case that as of the date of that assessment the appellant's mental condition had not been accepted as being a covered mental injury, but nevertheless the factual situation of it was identified and taken into account. [24] I find it to be the case that the determination of vocational independence is a decision made on a specific date, and it is only required that the relevant medical issues present at that date need be taken into consideration for the assessment. [25] I find it is clear from Dr Harman's report and his later further explanation of the matters he had considered for his report, that he had taken full account of the appellant's depression, and I find that there is no circumstance of relevance pertaining 6 to the appellant's mental condition that Dr Harman did not take into account when conducting his assessment. [26] In this case there is no competing assessment which would contend that Dr Harman had not taken account of all relevant factors, and I find it to be the case as a matter of law, that whilst the appellant may have obtained mental injury cover dating back to March 2008, the fact of the matter is that such cover was not in existence at the date of the assessment in issue, and so from the point of view that it was not considered as a covered injury at that time cannot be shown to be a factor which would identify that the assessment did not take account of all relevant issues. I find that the circumstances of this case are quite distinct from those situations where there has been a failure to consider a particular covered injury in an assessment for vocational independence. That situation does not apply in the present case. 27] In this case, I find that the Vocational Independence Medical Assessment of Dr Harman cannot be shown to be flawed from either a factual or legal perspective, and his assessment, in the absence of any competing assessment, must be accepted. It is therefore the case that the appellant was correctly identified as having attained vocational independence in the three work-types identified. [28] For the foregoing reasons therefore, the respondent's decision is confirmed and this appeal is dismissed. DATED this 3 day of October 2012 M J Beattie District Court Judge