Parker v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 259/2004 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 WARREN PARKER (AI 534/03) Appellant AND - ACCIDENT COMPENSATION CORPORATION Respondent HEARD at AUCKLAND on 12 August 2004 APPEARANCES Mr M Ryan, Counsel for Appellant. Miss S Mechen, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal is whether the decision of Catalyst Injury Management Limited of 20 May 2003 determining that the appellant had attained vocational independence within the meaning of the Act, was correct. [2] The objection raised by Counsel for the Appellant to that decision relates solely to issues arising from the Occupational and Medical Assessments and the substance of the appeal is confined to that one issue. [3] The background facts may be stated as follows: • The appellant had cover for a back injury suffered in a lifting accident in June 1988. • At the time of this injury the appellant was aged 37 years and was described as a meat processor. 534.03 (pg) 2 • The appellant was determined as being incapacitated as a consequence of his injury but he has had some part-time work at various types of employment since the date of his injury. • The appellant has had various surgical procedures on his lower spine including a spinal fusion at L4/S1. • An initial occupational assessment was carried out in February 2002 and an initial medical assessment carried out in May 2002. • Following the completion of various vocational rehabilitation initiatives the respondent was advised in February 2003 that all his rehabilitation had been completed and that he would be referred to the Vocational Independence Assessment Process. • On 19 March 2003 the appellant underwent an Occupational Assessment with Katherine Jones of Taskmaster Northland, and she identified that the appellant had a considerable range of transferable skills from his wide employment background. • The Occupational Assessor identified nine employment options suitable for the appellant having regard to his education, work experience and transferable skills, and included in those nine options was the employment option of Clerk - Library Assistant. • On 25 March 2003 the appellant underwent a Medical Assessment by Dr E W Dryson, Occupational Medicine Specialist. • Dr Dryson identified the nine employment options and gave as his opinion that the appellant was only capable of working for 35 hours or more in the employment option of Library Assistant. • Following receipt of Dr Dryson's report, Catalyst made its decision of 20 May 2003, determining that the appellant had attained vocational independence. • The appellant sought a review of that decision and a Review Hearing took place on 8 August 2003. • In a decision dated 1 September 2003, the Reviewer determined that the Occupational and Medical Assessments had been correctly carried out and that the appellant had been correctly identified as having attained vocational independence in respect of the employment option of Library Assistant. The Reviewer therefore confirmed the respondent's primary decision. 534.03 (pg) 3 [4] The essence of Mr Ryan's submission is that the Occupational Assessment is flawed and that it has, by its flaw, tainted the validity of the Medical Assessment carried out by Dr Dryson. To use the allegory given by Mr Ryan, the Assessment carried out by Dr Dryson and his decision is in fact 'fruit from a poison vine'. [5] The Job Details Sheet for the employment option of Library Assistant set out a description of the type of work involved and which stated: "Library Assistants provide services to Library customers. Services include issuing books, receiving, sorting and shelving books, periodicals, magazines and newspapers. Library Assistants undertake maintenance of Library materials and they supervise other workers. Training and experience required. Record keeping, communication, organisational and computer keyboard skills." [6] In the Environment and Function Section of the Job Details Sheet it provides that: Standing, walking and sitting are all common with stretching up or across being intermittent. Heavy lifting, pulling or carrying is not stated as being a function involved in this employment option. [7] The Job Details Sheet also provides for any comment on environmental modifications that might be necessary to enable the claimant to function safely. In that section the Assessor has stated: "No modifications are required. Equipment is used in most libraries today to avoid the need for heavy lifting (for example, book trolleys, steps to assist with shelving books above shoulder height, lifts to transport books between floors)." [8] Finally, the Assessor identified the sources of information she researched for the compilation of her report and the sources stated were: (i) New Zealand Standard Classification of Occupations, Department of Statistics 1999; (ii) Dictionary of Occupational Titles - 4th Edition, USA Department of Labour. (iii) Kiwi Careers Website, Career Services Rapuara, March 2003; (iv) Seek.NZ Online, Job Data Base, March 2003. (v) Work Insight, Skills and Work in New Zealand, Department of Labour, November 2002. [9] Dr Dryson's report identified the nature of the appellant's injury and he then noted as follows: "The specific impairments that Mr Parker will have in respect of the back and left sciatica are that he will not be able to undertake work which involves 534.03 (pg) 4 prolonged standing, prolonged sitting and more than small amounts of bending and twisting and exposure to vibration. Bearing these impairments in mind therefore and matching them against the tasks given for the types of work identified by the Vocational Independence Occupational Assessor the following comments apply: Office Clerk - Library Assistant - the Work Details Sheet shows that standing walking and sitting will make up one third of the time each, but not in a consecutive block of time. This does indicate a considerable ability to vary posture. There is no requirement for heavy lifting, pulling, or carrying and no requirement for bending or twisting. These tasks would be suitable for someone with low back pain and Mr Parker would be able to carry out this type of work in my opinion at 35 or more hours per week." [10] In support of the appeal, Counsel for the Appellant had introduced information provided by Hamilton City Library and Auckland City Library. Those two libraries replied to the requests from the appellant to set out the physical demands of the position of Library Assistant. The letter from Hamilton Library to the appellant stated as follows: "Further to our telephone conversation a few days ago, this letter is to outline the physical demands placed on a person who holds the position of Library Assistant at Hamilton City Library. I understand that you have recently had back surgery and ACC have recommended that a Library Assistant position would be ideal for you in terms of coping physically with the job. As we discussed, a Library Assistant position is actually one of the most physically demanding jobs within a library environment! It involves long periods of standing, both at the lending/customer service counter and shelving (up to four hours at a time - sometimes longer). The job also involves a lot of bending and lifting that would have impact on any back strain/injury you may have." [11] The letter from Auckland City Libraries (Human Resources Administrator) stated as follows: "Please find two library assistant position descriptions attached (we have a variety of library assistant positions based both in community and at central libraries, with similar but some specialist requirements). I would agree with Hamilton Libraries' comments. Many of our libraries have stairs, and lifting of items such as book hampers is a regular duty. Although we try to ensure staff use correct and safe book handling techniques, it is possible your current injuries could impair your ability to perform such tasks." [12] The two job descriptions were for Library Assistant (Circulation) and Library Assistant (Community Libraries). In each of those descriptions is the statement: 534.03 (pg) 5 "Physical stamina is necessary as staff will be on their feet throughout the day. One of the activities also highlighted by Counsel for the Appellant was stated in the Job Description as being: "Packs, unpacks and sorts hampers carefully and accurately. [13] Mr Ryan, on behalf of the appellant, submitted that the information obtained from those two libraries demonstrated that the Occupational Assessment was deficient in that the job options of Library Assistant involved the activity of 'lifting' and that lifting had been one of the functions which Dr Dryson had identified as being beyond the appellant's capabilities as Counsel noted that some of the other employment options which Dr Dryson had to consider did involve heavy lifting, pulling, etc., and for this reason those particular employment options were not regarded as suitable. [14] Counsel submitted that if the full information of the job requirements had been provided to Dr Dryson he would not have found that the position of Library Assistant was suitable for the appellant having regard to his back injury. [15] Miss Mechen, Counsel for the Respondent, submitted that Dr Dryson had all the information that was required from the Occupational Assessor, and she noted that the Occupational Assessor had turned her mind to the question of lifting or not, and she noted that no modifications were necessary to the employment environment to meet the particular needs of the appellant. [16] Counsel further submitted that the authors of the two letters from the libraries had no qualifications in Occupational Medicine and the fact that they were led to believe that the appellant had undergone recent back surgery was quite wrong, that surgery having been several years ago. [17] Finally, Counsel submitted that the jurisprudence in this field had identified that the Job Details were a generic job description rather than fitting any particular employment opportunity that may be in the marketplace, and she submitted there was no evidence that the details given by the Assessor was deficient in its generic description of the tasks and requirements of a Library Assistant. 534.03 (pg) 6 DECISION [18] The issue in this appeal is within a narrow compass and it requires the Court to determine whether the two assessments carried out can be sustained or whether there is evidence which would determine that they were flawed. As was submitted by Mr Ryan, the deficiency in the Occupational Assessment has of necessity lead to the Medical Assessment being unreliable and in his words "tainted". [19] The starting point for consideration of the issue in this appeal must be from the principles enunciated in the High Court decision in Ramsay (Christchurch High Court, AP 412/14/02) where His Honour Justice Hansen held that where assessments are required from duly authorised assessors then the assessments so made are to be given effect and cannot be called into question unless there is clear and cogent evidence that the assessment in question is flawed. [20] On that standpoint, I take it that Mr Ryan submits that the letters from the two Libraries constitute clear and cogent evidence that the Occupational Assessor has misconstrued the nature of the functions and activities of the job of Library Assistant. [21] I have carefully considered the contents of those two letters and I find that they cannot bear close scrutiny and do not amount to the type of clear and cogent evidence that would be required. Firstly, it must be taken that 'lifting' even of a light object must be regarded as part and parcel of almost every job detail, and for this reason it is not separately identified as an 'activity'. However, heavy lifting is so identified because that is in a different category. The background medical evidence identifies that it is only heavy lifting that would cause a problem for the appellant and this in turn was identified by Dr Dryson in the body of his Assessment Report. [22] Both libraries simply indicate that the job involves "lifting" items. It does not indicate that the job involves heavy lifting nor does it indicate that the job does not have artificial aids for assisting with heavy objects such as those set out in the Occupational Assessor's advice that most libraries today have equipment which enable heavy lifting to be avoided. [23] Whilst it is the case that heavy lifting would have undoubtedly put the occupation option of Library Assistant beyond the capabilities of this appellant, I find that Dr Dryson was quite clear when he identified the job as not involving any heavy lifting and 534.03 (pg) 7 it is clear that he turned his mind to this particular aspect when making his assessment that the specified tasks were within the appellant's capabilities. [24] In addition to my finding that the evidence presented by the appellant does not meet the test of being clear and cogent, I also find that that evidence, such as it is, only relates to a particular position in a particular library and cannot be regarded as being generic across the board. This Court has held on a number of occasions, the particular job details must be generic and be not employer specific. A recent exposition of this particular principle is that enunciated by this Court in the decision of Flaus (283/00) where the Court stated: "As previously noted the concepts of capacity are to be considered in the abstract rather than in the particular, and accordingly I find that even if this appellant may contend that this particular employment as a Caretaker at Mt Eden Normal Primary School has its difficulties, it has not been established that maintenance/handyman in associate employment such as a Caretaker in general or in the abstract do have the physical requirements which are known to be beyond the appellant." [25] Having regard to the comments made by Dr Dryson, I find that he has carefully considered this employment option in its generic form and he has noted that in his opinion the tasks required of a Library Assistant are suitable for someone with low back pain such as the appellant. [26] For the reason therefore that I have found that there has been no flaw in either the Occupational Assessment or the Medical Assessment, it follows that those assessments must be accepted and that the Respondent's decision made in reliance on those reports must be taken as being correct. This appeal is therefore dismissed. DATED at AUCKLAND this 27th day of August 2004 M J Beattie District Court Judge 534.03 (pg)