Martin v Accident Compensation Corporation

IN THE DISTRICT COURT AT HASTINGS WELLINGTON REGISTRY [2011] NZACC lo AI 349/09 UNDER Accident Compensation Corporation Act 200 IN THE MATTER OF an appeal pursuant to s 149 and 151 of the Act BETWEEN THELMA FAY MARTIN Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 16 August 2010 Appearances: Ms M Williams, Advocate for Appellant Ms S L Churstain, Counsel for ACC Judgment: 1 4 January 2011 RESERVED DECISION OF JUDGE PF BARBER Issue [1] The appellant challenges ACC's 20 February 2007 decision advising that the appellant had obtained vocational independence in five job types. Background [2] The appellant suffered two injuries in 2003, the first, a right shoulder injury in May 2003 resulting in a rotator cuff tear which was surgically repaired. A CT scan following surgery indicated an intact rotator cuff. THELMA FAY MARTIN V ACCIDENT COMPENSATION CORPORATION DC HAS AI 349/09 [3] In December 2003 the appellant was involved in a motor cycle accident and suffered a fracture of her left distal tibia. The appellant also injured her head in this accident resulting in a left sided tinnitus. The appellant's knee was slow to heal and resulted in her needing to use crutches to mobilise. [4] At the time of her first injury the appellant was employed in a supervisory role working with clients with disabilities. The appellant received weekly compensation from ACC. On 17 February 2004 Mr Rupert van Rooyen, orthopaedic registrar, reported to ACC as follows: "Unfortunately it looks like we are heading for a prolonged situation here. What we will do today is just wedge the current cast to try to correct a bit of the deformity. We will see her again in four weeks time with some more X- rays to see if this made any difference. She is to remain not weight bearing on this leg for the duration of that time." [6] On 11 March 2004 Mr Ryan Johnstone, orthopaedic registrar, reported that the appellant's fracture of the left tibia had been treated conservatively and had been very slow to heal. [7] In May 2004 a CT scan indicated that the bone was healing well and was aligned. Initial Occupational Assessment [8] On 10 June 2004 Stephanie Hunter and Catherine Hodges of Alpha Consultants, provided an Initial Occupational Assessment (IOA). The report summarised the appellant's work experience as follows: "Fay has had a number of different employment roles, beginning with retail sales experience before moving into a role as a dry cleaner. She waitressed for several years before stopping to have a family. For a period of 15 years, while she had children at school, Fay undertook a caregiving/housekeeping role with private clients. She then spent a period of three years as a Taxi Driver in Tokoroa, with responsibilities for dispatch, in addition to transporting private clients and the collection of the Lotto box. For the past six years Fay has been employed in a supervisory role with clients with disabilities in a workshop/employment situation." [9] The report identified 12 work types in which the client was suited based on her education, training, work experience and transferable skills. These included Community worker, Employment programme Teaching Associate Professionals, Waitress, Health Assistant, Housekeepers, Taxi Driver, Dispatch and Receiving clerk, Light truck or van driver, Courier and delivery driver, Mail Delivery Contractor, Drycleaner, and Sales Assistant. 10] The report noted that no barriers, other than current physical limitations, were identified. It was also noted that the appellant "wanted it recorded that she felt Dennis Shepherd, her physiotherapist, 'has been absolutely marvellous". Initial Medical Assessment [11] On 16 June 2004 Dr Paul Noonan, Occupational Medicine Specialist, provided an Initial Medical Assessment (IMA). Dr Noonan made the following recommendations: Community worker Employment programme teaching associate professional Dr Noonan noted these were light types of work which would not place significant strain on the appellant's shoulder. Dr Noonan suggested a work site assessment may be advisable for the position of community worker . Light truck or van driver Courier and delivery driver . Mail delivery contractor Dr Noonan did not consider the client had significant problems driving, but noted that some lifting may be involved. Provided heavy, awkward and above shoulder lifting could be minimised, then a work trial would be appropriate in a few months time. Health assistant . Housekeeper Dr Noonan considered these types of work were relatively heavy and the client would need to improve significantly before they could be medically sustainable. . Waitress This involves some lifting with both upper extremities. Dr Noonan suggested the appellant may improve in a few months time to do this type of work, but it was difficult to be certain . Drycleaner This was a heavy type of work and not sustainable . Dispatch and receiving clerk Dr Noonan noted this had extremely varied specific job descriptions. The appellant could likely cope with the walking required in a few months. However, if the job required significant lifting, particularly with the right arm flexed this may not be medically sustainable. Sales assistant This would require the appellant to be on her feet the bulk of the time and in a few months she may be able to cope with the standing and walking. Dr Noonan noted that light lifting may be involved and a work trial would be appropriate. [12] On 5 August 2004 the appellant's GP reviewed the shoulder and recommended ongoing physiotherapy which was approved. [13] On 20 August 2004 Dennis Shepherd, physiotherapist, commented: "Further to our conversation of Friday 20 August I agree that this is time for Fay to move onto an activity based programme with a view to returning to work. I have applied as I mentioned to ACC for an extension to treat her shoulder problem and my suggestion is that we attempt some hands on mobilisation and strengthening treatment of four to five treatments and encourage her as much as possible to progress these strengthening exercises programme on her ankle and knee." [14] On 11 September 2004 the appellant's GP completed an ACC 1164 work preparation programme. Dr Priest noted that the appellant had restrictions in terms of careful use of the right shoulder, to avoid prolonged standing and walking long distances. Specifically, Dr Priest noted that the appellant was to undertake no heavy lifting, that cycling might exacerbate the right shoulder and left ankle and careful technique modification was advised. Asked whether there was any reason why her patient could not participate in the programme Dr Priest answered no. [15] On 6 September 2004 a 'Plan of Action for Activity Based Programme was completed. This reported that the appellant's goal was to return to a job that involved driving, on a courier worker, light parcels only or lab courier. (16] On 4 October 2004 Lan Ship, audiologist, provided a report to ACC. Mr Ship commented as follows: "Results from this assessment indicate that Ms Martin has normal or essentially normal hearing in both ears. There has been a slight improvement overall in her hearing thresholds from her last assessment performed in July 2004. However, she reports no subjective change in the intensity of her tinnitus. At this stage, I have not arranged any further review of Mrs Martins hearing: however, I would be happy to see her again upon request." [17] On 3 October 2004 the work preparation programme plan was completed by Occupational Assessor, Robert Sellars of FCE Systems (NZ) Ltd. The appellant was referred for a group work preparation programme of 6 weeks duration. [18] On 16 November 2004 Mr Malcolm Giles, otolaryngologist, reported: "Given the very clear history I have no doubt that this is post traumatic tinnitus. I suspect there is a degree of damage to the inner ear from the injury, perhaps as a result of violent head shaking. Under ordinary circumstances one might have expected her to rehabilitate her tinnitus but she found the accident an extremely emotional event and I think that she has gone on to develop the classic syndrome of tinnitus, loudness intolerance and loudness exacerbation as a result. She certainly needs rehabilitation or she will find that the tinnitus will certainly get more and more obnoxious and I think that there is a risk of her progressing to outright depression." [19] On 11 November 2004 a pre-employment programme completion report was provided by Robert Sellars. The report noted that the appellant had attended 3 of 9 computer training sessions. It noted that the appellant had a basic understanding to use a computer in the workplace if this was necessary. No further computer training was recommended and it was noted the appellant showed little interest in computers. In terms of psychological component Mr Sellars commented: "Unwilling to acknowledge the relationship between thinking, emotions and behaviour. She is keen to return to work but would be hard to work with and would work best with a degree of autonomy." [20] In terms of physical rehabilitation Mr Sellars commented: "She participated well in the physical programme and demonstrated continuing ability to sustain a reasonable level of exercise without aggravating her leg or shoulder... Fay's general fitness has improved and her left knee function has improved, albeit that it is still well below expected strength for a female of her build. Her right shoulder overall has not improved with some aspects although in general her confidence in using her shoulder has improved mildly. Her progress in the six week programme has been satisfactory but she requires ongoing rehabilitation for her shoulder and knee." [21] On 21 December 2004 Mr Rob Neish, of Advance Physiotherapy, Northcare, provided a progress report on the activity based programme. [22] On 4 February 2005, Rob Neish, of Advance Physiotherapy, provided an Activity Based Programme - Final Report'. Mr Neish concluded: "Fay has made some encouraging gains with her ABP programme. Her left knee is significantly better. Her right shoulder has made a modest strength increase but has remained largely unchanged in ROM. Her left ankle continues to give trouble but despite this her level of function has increased significantly on both the shoulder and lower limb functional scores." [23] A work trial completion report was provided on 10 March 2005. In terms of claimant work behaviours it was noted: "Fay has received a very positive assessment for her work trial with Rob and Monique at Gracelands. Her sponsoring employer assessed Fay as being above average with her competency to complete tasks, punctuality, appearance and reliability. Monique has described Fay has being above average in her general attitude to work, courtesy, perseverance, responsibility and co-operation. Fay was rated above average in regard to her attendance, attention to detail and use of initiative, being able to respond in specialist conditions. Overall Fay is assessed with having the necessary workplace ethics and a positive approach to participating in this work trial." [24] The completion report noted that the applicant was able to work three to four hours per day five days per week. During this period the appellant was employed as a support worker/coach in a role linked to her pre-injury occupation. At the date of her injury the appellant was employed as a supervisor for South Waikato Achievement Centre which deals with high needs people with disabilities. [25] On 2 September 2005 a worksite assessment was provided with a view to formulating a graduated return to work programme for the appellant. In terms of the recommendations it was noted: "This supervising job does not require the supervisor to be working and performing the same tasks as the clients, but rather only to be supervisor. There were several work tasks identified today that Fay would not be able to do due to functional limitations. These include measuring and cutting the fabric, folding material and turning the handle on the crimping machine, as well as stacking the piles of completed files. However the majority of supervising Fay will be able to, she will be able to assist with such tasks as folding, checking edges, and supervising sewing. I have explained to Fay today that initially she will be there not in a capacity for work, but to use this graduated return to work programme as a form of rehabilitation to back in the work force and assisting where possible." [26] On 6 September 2005 Kim Wise, audiologist, reported on a recent hearing assessment and tinnitus evaluation. Ms Wise commented: "Ms Martin has essentially normal hearing. Therefore I strongly recommend trialling a Neuromonics Device." [27] On 29 May 2006 Kim Wise, Audiologist, wrote to ACC in relation to treatment for the appellant's tinnitus. Ms Wise commented: "Additionally Fay is doing much better during the day with the Neuromonics processor but is still struggling to get a restful night's sleep, due to her tinnitus. The earphones that work with the Neuromonics processor are not comfortable enough for Fay to retain them in her ears during the night. This has been the case with other client's using the treatment and is under review by Neuromonics Pty. For this reason, I strongly recommend that Fay receive a desktop sound generator for use at night." [28] On 21 July 2006 Ms Wise and the appellant completed an ACC324 Confirmation of Successful Neuromonics Trial' form. This authorised ACC to pay for the neuronmonics processor and noted that the appellant was to have ongoing sessions with Ms Wise. [29] On 18 July 2006 Dr Paul Noonan, occupational medical adviser, provided a second IMA. Dr Noonan commented in the discussion area of his report as follows: "Mrs Martin continues to have some discomfort and decreased range of movement with her right shoulder, this being associated with some weakness. Unfortunately she has failed to obtain expected post operative progress; post operative ultrasound examination and examination today failed to indicate any significant pathology to account for her ongoing reported symptoms. At present it is not thought that any further specific treatment is likely to make any significant difference to her symptoms. The fracture of her left lower tibia has effectively healed satisfactorily, with no ongoing impairment. She does however still report some ongoing discomfort, though with only minimal functional limitations as a result of this. Occupationally, she is likely to have decreased capacity for doing physically demanding tasks with her right upper extremity, and no real capacity for doing any overhead tasks. She is however capable of doing the bulk of lifting and carrying of relatively light or small objects with her left hand. She has the capacity for intermittent relatively light use of her right upper extremity. The symptoms around her left lower leg and ankle are likely to limit her capacity for the current physically demanding work on her feet." [30] Dr Noonan made the following occupational recommendations: . Community Work Dr Noonan noted this involved light work without any significant physically demanding tasks being required. Accordingly, it was seen as medically sustainable . Employment programme teaching associate professional As with community worker, this involved light work and was medically sustainable. . Taxi Driver Medically sustainable provided the appellant did not have to do significant heavy loading and unloading . Dispatch and receiving clerk Dr Noonan considered this medically sustainable provided the appellant did not have to do recurrent, overhead or moderate lifting. . Courier and deliverer Dr Noonan noted that lifting was light to medium and would not be heavy or overhead. Also, any lifting could likely be done with the left upper extremity. . Mail Delivery Contractor Lifting bags would usually be in the lightweight range. Provided the appellant was not required to lift mail bags over 10 to 15 kgs this was medically sustainable. . Sales Assistant Dr Noonan indicated that employment was considered to be medically sustainable providing the client is not required to do heavy lifting such as furniture or appliance stores. [31] Dr Noonan ruled out the positions of dry cleaner, housekeeper, light truck or van driver, as too physically demanding. [32] On 5 August 2006 Kim Wise, Research Audiologist, at the University of Auckland Hearing and Tinnitus Clinic, provided a report to ACC. Ms Wise noted that the appellant was undergoing the neuromonics tinnitus treatment protocol. Ms Wise recommended that the appellant continue to receive chiropractic services for pain and tinnitus. [33] On 9 November 2006 the appellant's GP, Dr Lynda Priest provided a medical certificate outlining restrictions on activity as "standing, hand tool use, stretching up or across, heavy lifting, pulling, or carrying". Dr Priest recommended a review of the appellant's work options. [34] On 13 November 2006 the appellant's Individual Rehabilitation Plan was signed off. This outlined agreed vocational rehabilitation interventions back to 14 January 2004. [35] On 15 November 2006 a Vocational Independence Assessment: File Summary team review and quality check was completed. This was completed by the Team Manager, Lorraine Cooke, and Branch Medical Advisor, Dr Anthony Burgess. [36] On 5 December 2006 the appellant completed a Vocational Independence Assessment questionnaire. The appellant described her injuries as: "pain in shoulder, outside of arm aches, ripping sensation front of arm, lots of headaches, tinnitus in both ears, and left leg aches, plus ankle aches and clicks". Vocational Independence Occupational Assessment [37] The Vocational Independence Occupational Assessment (VIOA) was completed by Dr Jan Brassington on 7 January 2007. Dr Brassington summarised the vocational rehabilitation outcomes as follows: "The IRP has been completed. The file information indicates Ms Martin participated well in the physical and vocational parts of the Work Preparation Programme but was reluctant to participate in the computing and psychological sessions. It was noted that Ms Martin remained quite angry at her medical and case management and this continued to inhibit her progress. The Work Ready Programme completion report indicated that Ms Martin conducted herself well throughout the programme. It was noted that Ms Martin showed competency in the work-trial as a support person and was able to practice and extend her skill-base in this placement. Ms Martin stated that she enjoyed this work trial because of the client and public contact. The Activity Based Programme completion report indicates that Ms Martin has made encouraging gains with her programme. Her left knee is significantly better. Her right shoulder has made a modest strength increase but has remained largely unchanged in ROM. Her left ankle continues to give her trouble but despite this her level of function has increased significantly." [38] Dr Brassington identified 15 options as being suitable for the appellant. Of those ultimately recommended in the VIMA, Dr Brassington commented: 1. Job Title: Community Worker Reason(s) for stating this job: Ms Martin has worked previously for six years for a community trust supervising clients with disabilities, during which time she has demonstrated extensive skills and experience in this role. She has sound organizational and communication skills. She shows sensitivity to others feelings, conveys warmth and offers support. Ms Martin is able to follow through on plans and size up people and situations. She is also helpful and of service to others and is attentive to detail. Claimant Comments (if applicable): "I'd go back to it if I could get rid of my physical pain and headaches." 2. Job Title: An employment programme teaching professional Reason(s) for stating this job: Ms Martin has worked previously for six years for a community trust supervising clients with disabilities, during which time she has demonstrated extensive skills and experience in this role. She has sound organizational and communication skills. She shows sensitivity to others feelings, conveys warmth and offers support. Ms Martin is able to follow through on plans and size up people and situations. She is also helpful and of service to others and is attentive to detail. Claimant Comments (if applicable): "No, until I get my shoulder done, nah." Job Title: Hotel and/or motel receptionist Ms Martin has worked previously in a variety of customer services based roles, during which time she has demonstrated relevant transferable skills. She has demonstrated sound communication, customer service and interpersonal skills. She is able to initiate relationships, attend to details and follow through on plans. Ms Martin is also helpful and of service to others. Claimant Comments (if applicable): "I don't know. I've never been there or done that.." Job Title: Information Clerk and Other Receptionist Ms Martin has worked previously in a variety of customer services based roles, during which time she has demonstrated relevant transferable skills. She has demonstrated sound communication, customer service and interpersonal skills. She is able to initiate relationships, attend to details and follow through on plans. Ms Martin is also helpful and of service to others. Claimant Comments (if applicable): "As long as there's not a lot of writing in it..' Job Title: Survey Interviewer Ms Martin has worked previously in a variety of customer service based roles, during which time she has demonstrated relevant transferable skills. She has demonstrated sound communication, customer service and interpersonal skills. She is able to initiate relationships, attend to details and follow through on plans. Ms Martin is also helpful and of service to others. Claimant Comments (if applicable): "No, I hang up on them because I think it's rude. [39] On 15 January 2007 Sarah Nelson, Chiropractor, provided a report. This was received by ACC on 18 June 2008. Ms Nelson commented on treatment as follows: "Given the chronicity of Ms Martin's condition I would envisage a somewhat protracted period of recovery. I have treated Ms Martin on a limited clinical trial basis to see whether symptomatic control could be obtained. We found moderate improvement in the frequency and intensity of her headaches and only very mild improvement in right shoulder movement and pain levels. Unfortunately, treatment was stopped due to other commitments." [40] On 17 January 2007 the appellant's general practitioner, Dr Lynda Priest, completed a vocational independence assessment general practitioner questionnaire. In relation to outstanding treatment issues it was noted that the appellant continued to have pain and problems with tasks due to rotator cuff injury. The appellant's GP considered that the appellant did not have capacity for work in her pre-injury employment but did have capacity to work in other types of employment. In relation to this it was noted that employment tasks which were not physically demanding and allowed for her hearing difficulties (tinnitus) would be suitable. Vocational Independence Medical Assessment [41] On 14 February 2007 Dr Blair Christian, occupational medicine specialist, provided a vocational independence medical assessment report. In the discussion section of his report Dr Christian commented as follows: "With regard to work roles, Thelma clearly has some significant limitations. She needs to avoid a work role where there is a requirement for forceful right shoulder movement, sudden right shoulder movement or work undertaken above chest height. An occupational driving role would not be appropriate given that she drives predominantly only with one hand. With regard to the left leg, Thelma should avoid a work role where there is a requirement for running or jumping, ladders, stairs or uneven ground, and significant weight bearing. With regard to the tinnitus, it would be sensible for Thelma to avoid a work role where there is significant exposure to loud noise, given her sensitivity to this. Thelma notes that the tinnitus itself, at least on most days, would not interfere directly with work, as it tends to be better in the daytime than at nighttime. Any job that did involve some driving would need to be in an automatic vehicle. I do not have a clear idea of Thelma's capacity to undertake long standing or walking through the day. For instance, when we were considering work roles involving prolonged standing, such as retail sales roles, Thelma was not able to say whether she felt she could manage this with regard to the left leg fracture. She notes that she can walk for an hour or two at a time, and then have a break, but does not know whether she could be on her feet for seven or eight hours per day. Thus a work trial in a retail sales type area might be useful to help with this assessment. The ideal work role for Thelma would likely be a sedentary to light work role, involving a mix of sitting and standing or walking, with no heavy physical work, and no work at or above shoulder level. An office or receptionist type role may be ideal, in terms of her injuries at least, although Thelma notes that she has absolutely no interest in undertaking any sort of computer work." [42] Dr Christian identified five work types that would be suitable for the appellant based on her injury restrictions. These included the following: . Hotel/motel receptionist This role is medically sustainable. The work is a sedentary to light work role, not requiring work above shoulder level, and with a good mix of sitting and standing. Thelma notes that this work might be doable in terms of her injuries, though notes that many of these jobs do involve frequent use of computers, and thus she would not be interested in this work role." . Information clerk and other receptionist This role is medically sustainable. The work is a sedentary to light work role, not requiring work above shoulder level, and with a good mix of sitting and standing. Thelma notes that this work might be doable in terms of her injuries, though notes that many of these jobs do involve frequent use of computers, and thus she would not be interested in this work role. . Survey interviewer This role is medically sustainable. The work is a sedentary to light work role, not requiring work above shoulder level, and with a good mix of sitting and standing. Thelma notes that this work might be doable in terms of her injuries, though notes that many of these jobs do involve frequent use of computers, and thus she would not be interested in this work role." . Community worker This role is medically sustainable. It is a sedentary work role, with a mix of sitting standing and walking through the day. Some driving is required, though this would not be prolonged. There is no requirement for work at or above chest level. Thelma agrees that physically this might be manageable, but notes that it involves computer work, and thus she would not be interested in this work role. . An employment programme teaching professional This role is medically sustainable. It is a sedentary work role, with a mix of sitting standing and walking through the day. Some driving is required, though this would not be prolonged. There is no requirement for work at or above chest level. Thelma agrees that physically this might be manageable, but notes that it involves computer work, and thus she would not be interested in this work role. [43] On 20 February 2007 ACC issued a decision that the appellant had obtained vocational independence in five jobs types identified as suitable in Dr Christian's report. The appellant lodged a review against this decision. [44] On 16 October 2007 a review hearing commenced and was reconvened on 23 October 2007. On 19 November 2007 the reviewer issued a decision dismissing the application. The Reviewer (M H Donovan) made the following findings: . The rehabilitation identified in the IOA and IMA had been undertaken. . All interventions identified in the IRP had been conducted. . The appellant had undertaken rehabilitation directed at improving her physical capacity to work and this had been directed to all of her relevant injuries. .The appellant had been provided with appropriate vocational rehabilitation from a work preparation programme and both interventions had been successfully completed. In relation to dealing with computers, although the appellant had not completed all computer sessions, nonetheless the completion reports concluded that she grasped the basics of computer operation so she could use a computer in a workplace if necessary. Those findings seem sound to me. VI Reassessment [45] On 2 April 2008 Dr Alison Hamilton, General Practitioner, provided a medical certificate indicating the appellant was only able to work 2 hours per day 5 days a week. Then on 22 April 2008 Dr Hamilton wrote to ACC indicating that based on the few consultations she had had with the appellant she could not comment on deterioration. However, Dr Hamilton did not consider the appellant could work for 35 hours or more as a community worker. Dr Hamilton stated this was due to reduced movement in the right shoulder and partly due to ankle injury which prevented the appellant from walking long distances. [46] ACC arranged for the appellant to be reassessed for vocational independence. A VIOA was completed on 30 May 2008 by Dr Brassington, of SB Consultants Limited. Dr Brassington identified 19 work types as suitable for the appellant. In terms of barriers to returning to work, she commented: "Vocational barriers to Ms Martin successfully obtaining work in the jobs identified above are: she would be required to renew her passenger endorsement in order to be vocationally ready to work as a taxi driver. Otherwise, in terms of skills, training, experience and qualifications there are no barriers to Ms Martin successfully obtaining work in the jobs identified above." [47] On 25 June 2008 Dr Rod Nicolson, Occupational Medicine Specialist, completed a VIMA. Dr Nicolson commented on whether the appellant's capacity to engage in employment had deteriorated as follows: "Her situation concerning her right shoulder and left ankle continue since her motor vehicle accident. She has had no significant change since her last assessment in February 2007 concerning these injuries. She has however developed a right hip injury following slipping in the bath in September 2007. She has ongoing right hip pain which is aggravated with physical activity or prolonged walking. X-ray was normal and no fracture was noted. The diagnosis is unclear but likely to be hip ligamental injury. [48] Dr Nicholson ruled out 14 work types as medically unsuitable. Dr Nicholson considered the appellant was able to work 35 hours or more in the following job types: Community worker, Employment Program Teaching Associate Professional, Survey interviewer, Hotel or motel receptionist, and Inquiry Clerk [49] On 23 July 2008 ACC issued a decision confirming that the appellant continued to have vocational independence. The appellant lodged a review application and a deemed review decision arose in favour of the appellant. Relevant Law [50] Section 6 of the Act defines "vocational independence" as follows: "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 35 hours or more a week." [51] ACC may assess vocational independence under section 107 of the Accident Compensation Act 2001 which provides: "107 Corporation to determine vocational independence (1) The Corporation may determine the vocational independence of- (a) a claimant who is receiving weekly compensation: (b) a claimant who may have an entitlement to weekly compensation. (2) The Corporation determines a claimant's vocational independence by requiring the claimant to participate in an assessment carried out- (a) for the purpose in subsection (3); and (b) in accordance with sections 108 to 1 10 and clauses 24 to 29 of Schedule 1; and (c) at the Corporation's expense. (3) The purpose of the assessment is to ensure that comprehensive vocational rehabilitation, as identified in a claimant's individual rehabilitation plan, has been completed and that it has focused on the claimant's needs, and addressed any injury- related barriers, to enable the claimant- (a) to maintain or obtain employment; or (b ) to regain or acquire vocational independence." [52] Section 108 of the Act sets out explicitly the process to be followed by the respondent: "108 - Assessment of claimant's vocational independence (1) An assessment of a claimant's vocational independence must consist of - (a) an occupational assessment under clause 25 of Schedule 1; and (b) a medical assessment under clause 28 of Schedule 1. (2) The purpose of an occupational assessment is to - (a) Consider the progress and outcomes of vocational rehabilitation carried out under the claimant's individual rehabilitation plan; and (b) Consider whether the types of work (whether available or not) identified in the claimant's individual rehabilitation plan are still suitable for the claimant because they match the skills that the claimant has gained through education, training or experience. (3) The purpose of a medical assessment is to provide an opinion for the Corporation as to whether, having regard to the claimant's personal injury, the claimant has the capacity to undertake any type of work identified in the occupational assessment and reflected in the claimant's individual rehabilitation plan." [53] Clauses 24 to 29 of Schedule 1 of the Act set out the processes to be followed in the preparation of the VIOA and VIMA. In particular clause 26 sets out the requirements that an VIOA must meet: "26 - Report on occupational assessment - (1) The occupational assessor must prepare and provide to the Corporation a report on the occupational assessment specifying - (a) the claimant's work experience; and (b) the claimant's education including any incomplete formal qualification; and (c) any work related training in which the claimant has participated; and (d) all skills that the assessor has reasonably identified the claimant as having; and (e) the vocational rehabilitation that the claimant has received under the individual rehabilitation plan or in any other way; and (f) the outcome of the vocational rehabilitation; and g) all types of work reasonably identified as suitable for the claimant; and h) in relation to each type of work, the requirement of that type of work, including any environmental modifications that the assessor identifies as necessary to enable the claimant to function safely in that type of work." [54] Clause 29 sets out the requirements for the VIMA: "29 - Report on medical assessment - (1) The medical assessor must prepare and provide to the Corporation a report on the medical assessment specifying - (a) relevant details about the claimant; including the details of the claimant's injury and (b) relevant details about the clinical examination of the claimant undertaken by the assessor, including the methods used in the assessor's findings from the examination; and (c) the results of any additional assessment of the claimant's condition; and (d) the assessor's opinion of the claimant's vocational independence in relation to each of the types of work identified in the occupational assessor's report; and (e) any comments made by the claimant to the assessor relating to the claimant's injury and vocational independence in relation to each of the types of work identified in the occupational assessor's report. (2) The report must also identify any conditions that - (a) prevent the claimant from having vocational independence; and (b) are not related to the claimant's injury." [55] In Martin v ACC [2009] 3 NZLR 701 (H.C.) \ Justice Ronald Young stated at paragraph 33: "The District Court Judge's function on re-hearing, when dealing with the medical assessment, is to take all of the medical evidence, including that from the medical assessor and any other medical evidence into account in deciding whether or not the appellant is vocationally independent. In doing so, it will be inappropriate to give the medical assessor's opinion, simply by virtue of the fact that it is an opinion of the medical assessor, any pre- eminent position. In assessing the medical evidence, the reviewer and the district Court's job will be to apply a traditional approach to an analysis of the competing expert evidence. For example, how do the medical practitioner's particular qualifications and experience relate to the claimant's disability? What is the quality of the medical report, including the thoroughness of the detail. There will be a range of other factors that will be relevant in individual cases.' [56] In Pani v ACC (54/2005), it was found: [21] It is to be noted that 'on the job' training is an acknowledged and acceptable part of the up-skilling that would be obtained in this particular role and that it not to be taken as being a barrier to identifying that the appellant has the necessary skills for entry level acceptance." Discussion [57] Ms Churstain submits that ACC has provided appropriate vocational rehabilitation in accordance with the appellant's IRP under s 107(3). This included, a 3 month Activity Based Programme, and ongoing treatment and rehabilitation for her tinnitus condition. The appellant also participated in a Work Preparation Programme and work trial, as agreed in her IRP. VIOA [58] Counsel for ACC also puts it that the work types have been deemed to be suitable for the appellant taking into account her previous work history, qualifications and skills. [59] In the VIOA, Dr Brassington provides a comprehensive summary of vocational rehabilitation undertaken and outlines the appellant's education, work- related training, and skills. [60] The main concern identified by the appellant relates to computer skills. Dr Brassington notes that the appellant has word processing skills in her report, but has expressed a strong reluctance to use computers. It is submitted for ACC that the job types identified contemplate on the job training at entry level positions. Pani v ACC is authority for the proposition that some on-the-job training is a reasonable expectation. Also, in Bell (12/2007) the position of "Information and Receptionist" was considered and Judge Ongley commented: "[30] That does not dispose of the other work type Receptionist and Information Clerk described in NZSCO 44213. After reading the assessments and other material, I find that is a job that appears to match the appellant's skills and ability. Keyboard skills are not specified in the work details. It is more of a communication role than a data processing role and the technical skills required in the description of work for a General Clerk are not found in the description for this occupation. I find no real evidence to show that the assessment of suitability for that job was flawed. The appellant appears to be moderately active person with social skills and ability to organise. She should be able to obtain employment and this job description appears to be reasonably matched to her skills and experience." [61] I agree that Dr Brassington has appropriately identified the appellant as having the skills referred to in that decision. I also agree that the position of Hotel Receptionist is substantially a role requiring social and organisational skills. The Work Type Detail Sheet for Survey Interviewer does not refer to particular keyboard or typing skills; nor do the positions of Community Worker or Employment Program Teaching Associate. VIMA [62] It is submitted for ACC that the VIMA completed by Dr Christian meets the requirements of clause 29 of the Schedule 1 of the Act. I agree. [63] Dr Christian has considered the details of the appellant's injuries, set out the relevant medical history and his own examination findings. He was particularly aware of the appellant's pain in her right shoulder and left ankle. He also notes the headaches often experienced by her. [64] It is noted that the appellant's comments in relation to each job type are not directed at lack of physical capacity. This point is similar to that in Neither (197/2007) where Judge Ongley observed: However, Dr Marshall cannot be said to have ignored or overlooked the question of chronic pain, or to have failed to address it in the context of considering whether from a medical point of view the appellant is capable of undertaking the roles identified. He did consider it extensively and noted that the "prime issue" for the appellant was pain and its aggravation in the performance of heavy work. However, he also identified the fact that neither of the two jobs which he found her capable of sustaining for 35 hours or more per week demanded such work. I consider it significant that the appellant's comments in relation to each of the job types, in terms of work capacity, are not directed to any real physical lack of capability - particularly, regarding the position of survey interviewer. When read as a whole, Dr Marshall's report provides sufficient explanation why he considers the appellant capable of working in these comparatively sedentary to light roles for 35 hours or more per week. I appreciate that, in reality, pain can deprive a person of capacity to work. (my underlining) [65] On 24 April 2008 the appellant's GP, Dr Hamilton, commented that the appellant would not be able to work 35 hours or more in the role of Community Worker. Dr Hamilton reasoned that the appellant had reduced movement in the right shoulder and, partly due to ankle injury, that was preventing her from walking long distances. I note that Dr Hamilton's comment is over a year after Dr Christian's VIMA. Dr Hamilton acknowledged that she was not sufficiently familiar with the appellant's case to comment on whether there had been a deterioration. [66] In any case, Dr Christian was well aware of the appellant's physical restrictions in terms of her right shoulder and difficulty with her left ankle. Dr Christian noted that the position of Community Worker involved a mix of standing and sitting, and that there was no requirement for work at or above chest level. The appellant agreed this was physically manageable. In the Work Type Detail Sheet, it is noted that there is some ability for employees to self-pace the required work tasks to suit physical requirements. [67] Further, when reassessed by Dr Nicholson on 25 June 2008, the appellant was still found to have the ability to work 35 hours or more per week in role of Community Worker. Dr Nicholson noted that lifting was unlikely. Since June 2006, three occupational physicians, Dr Nicolson, Dr Christian and Dr Noonan, have found this position suitable. [68] I am appreciative of the detailed written and oral submissions from Ms Williams on behalf of the appellant. Most of those are dealt with above, but there are other factors to note. [69] It seems that the appellant developed severe mirgraine headaches from working at a computer, although she considers that it is only necessary to raise the level of the computer keyboard for her to alleviate that. It was also suggested that her headaches develop because she wears bifocal glasses in order to see the screen and the keyboard, and to do that, puts her head on such an angle as to strain her neck and cause the headaches. One would have thought that if those are the causes of headaches, they can be readily remedied. [70] A theme from Ms Williams, Advocate for the Appellant, is that the need for constant standing and walking prevents the appellant from carrying out the basic designated work-types. However, the assessors have carefully taking that aspect into account. [71] There was also reference to ACC, allegedly, having placed the appellant under huge stress by initiating some sort of proceedings against her for fraud alleging that she had been working when receiving compensation and not disclosing that. The nature of those proceedings was not explained to me, but I gather it was something to do with her managing a newspaper delivery enterprise where all the delivery work was done by the appellant's grandchildren who were appropriately paid, but she managed the business for them without financial return to her. I can understand that would have caused the appellant much stress in the course of rehabilitation endeavours. I understand that she was acquitted and now feels that ACC should meet the legal costs she incurred over that. As indicated, I was not advised about the nature of that issue, but perhaps the Costs in Criminal Cases Act 1967 would give the appellant a remedy to some extent. [72] I also note that in September 2007 the appellant had a further injury when she slipped in the bath and hurt her right hip. This caused pain with physical activity or prolonged walking, but that seems to have been taken into account appropriately. [73] It does not seem to be in dispute that the December 2003 accident caused injuries to the appellant's ankle, knee, and neck and the neck injury subsequently developed tinnitus in her ears, and she is covered for all that. [74] A submission for the appellant is that when ACC made its relevant decision on 20 February 2007 "the injury related barriers to her returning to work had not been identified and addressed". I consider that the saga I have outlined above shows firmly to the contrary. [75] It is, of course, submitted for the appellant that her injuries prevented her from returning to work as at February 2007 and the work trials showed she was only able to work 2-3 hours a day. It seems to me that proper processes were followed without any flaws and there is clear evidence that the appellant had obtained vocational independence in the 5 job types. There is no real evidence to the contrary other than her protestations and no convincing evidence to the contrary on the balance of probabilities. If I follow the guideline of Ronald Young J in Martin v ACC (referred to above), the effect of all the medical evidence and occupational assessment evidence is that the appellant had obtained vocational independence in the 5 job types by 20 February 2007. [76] The medical specialists have taken into account that, most unfortunately, the appellant's ankle was realigned incorrectly when originally set in plaster and needed to be broken and reset. All that must have caused the appellant considerable pain and discomfort. I record that I have particularly taken into account the appellant's evidence to me that her ankle is now fine, she having had realignment of it in March 2009 and plates removed on 30 November 2009; her arm is still painful and she still suffers from migraines quite frequently. Again I note that those factors have been carefully considered by Dr Christian and the other medical advisors involved in this saga. [77] I accept the appellant's assertion that she has always been enthusiastic about rehabilitation and it is incorrect that she has been unenthusiastic about work trials and the like. I also accept that she must still experience pain but it seems to me that the medical assessor (Dr Christian) took that into account. [78] There was reference to Judge Beatties' decision in Pattison v ACC (No. 322/03) determining, on the evidence in that case, that the appellant did not have the necessary skills by education, experience and training nor the physical ability to undertake all the tasks of one of the approved job types. However, there is no convincing evidence to lead me to such a conclusion regarding any of the 5 job types in this case. [79] I find that ACC's 20 February 2007 decision that the appellant had obtained vocational independence in the 5 job types, community worker, employment programme teaching associate professional, survey interviewer, hotel or motel receptionist, and inquiry clerk, must be treated as correct. Accordingly this appeal is hereby dismissed. 1 4 Barter Judge P F Barber District Court Judge, Wellington