Ranson v Accident Compensation Corporation

IN THE DISTRICT COURT AT NELSON [2013] NZACC 324 ACR 298/13 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN XAVIER RANSON Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 16 July 2013 Appearances: Tony Gibbons (advocate) for Mr Ranson Julian Castle for the Corporation Evidence transcript available: 27 September 2013 Judgment: 8 October 2013 JUDGMENT OF JUDGE RODERICK JOYCE QC Reason for appeal [1] Mr Ranson has cover from the Corporation for a back injury suffered in July 2002 and was in receipt of weekly compensation. [2] In December 2012 a new rehabilitation plan' was developed for Mr Ranson which on 11 February 2013 the Corporation deemed effective without his agreement. [3] Mr Ranson unsuccessfully sought a review of that determination and has since appealed. There had been at least two previous plans. Background [4] I note the following: The Corporation acknowledges that as a result of the back injury Mr Ranson developed a chronic regional pain syndrome. Some number of interventions had occurred before, on 25 January 2011, Mr Ranson was examined by Dr Antoniadis, occupational health medical practitioner, for the purpose of a review of his case. Dr Antoniadis' report began with a very detailed history relating to the injury, as well as his general medical, social and occupational history. Dr Antoniadis then turned to his clinical examination and a review of prior investigations. When expressing his opinion on the case the doctor wrote: Mr Ranson continues to exhibit symptoms of chronic regional pain syndrome but at present there is no indication of any ongoing nerve root irritation or impingement and he does not require any ongoing investigations. With regards rehabilitation, clearly with time it would be valuable to try and reduce his dependence on narcotic analgesia . .. .. he is fully unfit for his pre-injury role (in furniture removal) but would be suited to an occupation that was of sedentary to light in nature ... he is effectively managing his pain despite the use of narcotic analgesia. He is also effectively using non- analgesic methods with which he is managing his pain symptoms. He is also able to practice distraction when his symptoms are not severe. The prognosis is good in a physically appropriate role but the prognosis would be poor for a return to his pre-injury role which is not appropriate for him. . .. He is keen on maintaining his core strength and has the opportunity to use the personal trainer used by his son ... some guidance and direction with regards ongoing self management would be appropriate. Mr Ranson appears to have the skills to manage his pain symptoms, which has allowed him to undertake regular aerobic activity, maintain social interactions with his family and friends and undertake some household chores. I would endorse a work trial with the support and guidance of an occupational therapist and a graduated increase in work hours up to full time in a physically appropriate role and the activities that are physically appropriate for him were mentioned in this report (Emphasis added) At the same time Dr Antoniadis provided an IMA which considered, and in some instances supported, some number of a very wide range of job types. These reports were sent to Mr Ranson's general medical practice under cover of a letter from the Corporation that included this: Dr Antoniadis recommended in the medical case review Zay's GP works with him to reduce his use of narcotic analgesia ... can you please continue to monitor this . Mr Gibbons (who appeared before me as Mr Ranson's advocate) wrote to the Corporation on 24 March 2011 to say: It is requested that as part of Zay's return to work rehabilitation ACC fund an in-depth assessment including the likely influence of his current medications upon his ability to both learn and perform new work tasks and those tasks he already has the competencies to perform and that any recommendations be implemented. The Corporation followed up with a reference to the Alcohol and Drug clinic at Nelson Hospital. No consequential report is apparent in the bundle, but what is clear is that, some months later on 20 July 2011, the Corporation indicated its willingness to revoke a previously deemed rehabilitation plan in favour of a new one that was to include "the upcoming medication assessment and neuropsychological assessment". [5] A 25 July 2011 report from Dr Mark McLaughlin, musculoskeletal pain specialist, noted that Mr Ranson was currently taking: W N And such were particularly identified in the accompanying IMA. Dr Antoniadis' medical case review report had noted that Mr Ranson made considerable use of opiates that were monitored by his GP and that he, Mr Ranson, was aware of the difficulties arising from chronic opiate use. Sevredol 20 mg tablets 5 times per day. LA morphine 100 mg twice daily. Clonazepam 0.5 mg 3 tablets at night. Diazepam 5 mg half tablet 3 times per day. Rivotrial drops - 2 at 5.00 pm each day. Dr McLaughlin mentioned that this evidenced increased dosages over more recent times, including of morphine. [6] Dr McLaughlin then wrote that: It is known that the medications that Xavier currently takes can impair cognitive ability and also impair motor skills. Unfortunately there is a large variation in the effect of this medication on both of these functions and in view of this, individuals will be required to be assessed to determine if an impairment is present, and if there is, how significant this would be on the activity. The only way to address your question therefore is to ask for an occupational therapy assessment. In this case, an occupational therapy assessment to determine of Xavier is safe to drive in order to perform the tasks appropriate to the vocation which Xavier and ACC identify as appropriate. (Emphasis added) [7] There follows in the bundle what appears to be a draft plan prepared, so it would seem, around May 2011. It refers to the gaining of confirmation that the medications that Mr Ranson is taking affect his cognitive ability to work or drive. [8] This appears to be the plan referred to in the Corporation's letter of 2 September 2011 to Mr Ranson, one which touches upon a considerable volume of correspondence between it and Mr Ranson or Mr Gibbons - correspondence obviously enough arising in the context of Mr Ranson not having signed off on the plan. In any event, that letter advises him that the Corporation has itself finalised same. [9] On 6 January 2012 Dr James Hegarty, consultant clinical psychologist, reported on Mr Ranson's referral to him for a neuropsychological assessment. Observations then made by Dr Hegarty included that: Mr Ranson's presentation in session certainly did not indicate drug- induced intoxication. During our interviews I saw no signs of slowed responding, dysarthria, confusion, disorientation, or poor memory. In contrast to Mr Ranson's presentation, his performance on a number of standard neuropsychological measures suggested extreme impairment. ... the nature of Mr Ranson's responses on several tests of cognitive ability were clearly beyond what would be expected due to medication use in an outpatient setting. His abilities in several areas were such that they would indicate a severe and debilitating dementia. This was in stark contrast to his presentation in session such as his ability to converse, his demonstrated abilities of memory, and intact functioning on some measures of processing speed, long-term retrieval, and response inhibition. It is my conclusion that Mr Ranson purposefully underperformed during our assessment. ... unfortunately, the nature of Mr Ranson's responding during this assessment calls into question the veracity of his reports of disability. [10] In this state of affairs Dr Hegarty strongly recommended that decisions concerning the cognitive effects of Mr Ranson's medications be based on literature and their known effects, rather than his self report. And he later wrote: In summary, I have no evidence that Mr Ranson's medication impacts in a significant manner on his cognitive functioning. There was evidence that he could attend and concentrate for periods of up to several hours. [11] By 28 August 2012 an IRP signed by both parties was in place and this recorded that: A pain specialist assessment was to be completed. Mr Ranson was to participate in a driving assessment. Mr Ranson was to participate in a Work Ready Programme in the form of a work trial; and - On completion of rehabilitation enter into the vocational independence process. [12] A comprehensive pain assessment report followed (one dated 23 November 2012). This adverted to the anomalies in Mr Ranson's responses as reported by Dr Hegarty. The psychologist's observation was that he was unlikely to be able to assist because of the entrenched nature of Mr Ranson's personal beliefs about his situation and what would help him. [13] This included Dr McLaughlin echoing what he had said before* by saying on the issue of medication: ... individuals are best assessed ... by an occupational therapist ... this of course is dependent on Xavier's co-operation. [14] On 3 December 2012 the Corporation sent the comprehensive report to Mr Ranson along with a new IRP. The key elements of that were that Mr Ranson should now participate in a functional capacity evaluation and a Work Ready Programme in the form of a work trial. Mr Ranson was asked, after taking due advice, to sign and return the plan if he agreed with it. [15] It is clear (and in itself understandable given the background) that at this point (and despite Dr Hegarty's 'yellow flags') the Corporation was still intent upon identifying whether Mr Ranson did have any functional limitations and why. [16] Mr Ranson refusing to sign the new plan, on 11 February 2013 the Corporation unilaterally finalised it and then set out to obtain from Work Rehab Limited advice as to whether the effect of Mr Ranson's medication would inhibit his ability to perform the work tasks outlined in the IMA. [17] Such an evaluation was made on 5 March 2013 (Mr Ranson in fact attending as required) and the report in question recorded this conclusion: Mr Ranson fully participated in the functional capacity evaluation. A discussion occurred at the start of the assessment outlining that a functional capacity evaluation is unable to establish cognitive impact related to See [6] above. medication. Mr Ranson undertook the assessment understanding the scope of the assessment. He had quite extreme pain levels up to 9/10 and reported that his pain level was 9.5/10 24 hours after the assessment. There appears to be some modest improvements since the previous functional capacity evaluation that was undertaken. There appears to be a match or partial match in relation to physical capacity in many of the occupations identified ... (Emphasis added) Review decision [18] In dismissing Mr Ranson's review application (and disallowing costs) the reviewer wrote: The first issue I will consider is whether ACC was in a position to deem Mr Ranson's rehabilitation plan. Clause 8 provides that it may do so if Mr Ranson does not agree to it, after a reasonable time. In this case I find that Mr Ranson had more than a reasonable time to agree to the plan. It was first drafted and sent to him on 3 December 2012. Following email correspondence with him, via Mr Gibbons, it was evident that he was not going to agree to the plan. He had more than two months to agree to it. In these circumstances I find that ACC was able to deem the plan under clause 8. The thrust of Mr Gibbons' submission is that the plan should include a referral to a psychologist . He submitted that would be the correct person to assess the effects of medication on Mr Ranson's ability to learn and perform new work tasks. He submitted that the functional capacity evaluation could never achieve that. Mr Gibbons referred to several recommendations throughout Mr Ranson's file for psychological intervention. (Emphasis added) Comment 19] Mr Gibbons' just noted submission must be considered in light of the fact that ACC's referral for a functional capacity evaluation flowed directly from the last comprehensive pain assessment. 20] As has been noted, a recommendation twice made by Dr McLaughlin favoured a functional capacity evaluation by an occupational assessor to assess the effect of of [ 12] above. There had of course already been a neuropsychological assessment completed by Dr Hegarty in January 2012 - see [9]-[10] above Mr Ranson's medications. It was thus understandable, indeed could be regarded as required by s 78 (which says that plans must reflect assessments), that the plan should reflect that recommendation. [21] There is no useful evidence to support Mr Gibbons' submission that a further psychological assessment would assist. The psychologist who signed off on the 23 November 2012 comprehensive pain assessment report had indicated that further psychological intervention was unlikely to be productive. [22] The information available to ACC from a seemingly competent source' when it made its unilateral IRP decision was that a functional capacity evaluation would likely achieve the desired goal of clarifying the impact of medication on function. Case for Mr Ranson [23] Mr Gibbons told the Court that what Mr Ranson had sought to have added to the IRP was a referral to an appropriate person - To determine likely influence of his current medications upon his ability to both learn and perform new work tasks and those recommendations be implemented - something he proposed an FCE could not achieve and which, so he submitted, was a term that met the relevant criteria in the Act. 24] Here he adverted to earlier history between Mr Ranson and the Corporation and, in particular, to prior reports (the substance of some of which is not included in my 'background' above) concerning the issue of opiate use. [25] Mr Gibbons also said (and counsel for the Corporation conceded) that the review hearing had not proceeded happily, with the consequence that it had been difficult for Mr Ranson or Mr Gibbons to put his case before the reviewer. Case for Corporation [26] Briefly summarised the Corporation's case was this: Dr McLaughlin. The previously agreed (on 28 August 2012) IRP had included provision for a referral for pain specialist assessment; and That had resulted in a comprehensive report which included the advice that the best approach to assessment impairment would be per medium of an occupational therapist. So in providing for an FCE by an occupational therapist in the subsequent IRP, the Corporation simply followed up on that advice. Mr Gibbons' request for an additional intervention to be added was not part of the comprehensive pain assessment recommendation; and anyway Mr Ranson's cognitive abilities and any impact his medication might have in that respect had been assessed by Dr Hegarty, a consultant clinical psychologist ; and Given the Hegarty assessment it had then been reasonable to proceed to a functional assessment of physical capacity. The law [27] Sections 75 to 78 deal with individual rehabilitation plans which, in terms of s 77, must: (a) Identify the claimant's needs for rehabilitation; (b) Identify the assessments to be done; (c) Identify services appropriate to those needs, whether or not the Corporation is liable to provide any or all of those services; and With the results I have already set out. (d) Specify which of the services identified under paragraph (c) that the Corporation will provide, pay for, or contribute to. [28] Moreover and in the process of identifying the claimant's rehabilitation needs the Corporation must pay attention to such as relate to social rehabilitation (ss 79 to 84 and cl 13 to 23 of Schedule 1) and vocational rehabilitation (ss 89 to 96). [29] An agreed IRP has been described in this Court as being "in the nature of an enforceable contract" and the Corporation may under s 117(3)(c) suspend, cancel, or decline entitlements including the provision of rehabilitation if the claimant unreasonably refuses or fails to agree to an individual rehabilitation plan. [30] The case of an unreasonable refusal or failure to co-operate by signing an IRP is covered by cl 8 of Schedule 1 of the Act which provides: . .. (2) If, after a reasonable time, the claimant declines to agree to the plan, the Corporation may advise the claimant that the plan is finalised, and the plan is then to be regarded as if the claimant had agreed to it (3) When the plan is agreed or finalised, the Corporation must implement the plan. . . . Evidence on appeal [31] Mr Ranson gave evidence before me in which he spoke of various occasions when, and circumstances in which, his short-term memory had let him down. All that was clear from that evidence was that he was determined to leave the impression that he suffered from significant memory deficits. Discussion' [32] Potentially, two issues arise in this appeal. First of all, was the Corporation's request of Mr Ranson that he sign the IRP in question according to the terms See also [19] to [22] above. proposed reasonable and, if it was, was his refusal or failure to sign it reasonable? In some cases one would in fact say that that last issue is necessarily interlocked with the first. [33] The avowed purpose of the provision in the plan for the performance of a functional evaluation was to gain confirmation or otherwise that the medications that Mr Ranson was taking had affected his cognitive ability to work or drive. [34] When (despite his refusal to agree to the IRP) Mr Ranson later co-operated in the functional capacity evaluation process it became apparent that the chosen evaluator did not consider that such an evaluation could achieve the desired purpose. [35] But that is not to show that the Corporation acted unreasonably in making it a term of the IRP that Mr Ranson submit to such an evaluation. For it pursued that course not simply of its own volition but on the repeated recommendation of Dr McLaughlin and against a background including Dr Hegarty's report that he, a neuropsychologist, could not (given Mr Ranson's conduct at assessment) help, and the allied advice of a psychologist . [36] The Court is not entirely clear as to the extent and nature of exchanges between Mr Ranson's advocate and the Corporation over the whole issue in the lead-up to the deeming of the plan in question here, but it seems to be the case that what Mr Gibbons himself had been pressing for was psychological evaluation. But (see [35] above) I see no sign at all that any kind of further psychological evaluation would have worked for the purpose in mind either; in fact the contrary appears the case. [37] In light of the particular and problematic background of this appeal, it might be suggested that the Corporation should have taken the trouble to confer (there is no sign that it did) with the evaluator or evaluators it had in mind as to the utility of their involvement before confirming that. 10 See [12] above. They may not have been directly then concerned with the functional issue finally in contention here but the point is that of Mr Ranson's apparent aversion to matters psychological (38] Had that been done, and on what is apparent now, it would seem likely that an FCE for the purpose of determination of medication effects would not have been pursued - at least not with the actually chosen provider. [39] However, hindsight is a wonderful thing and the obvious and commendable fact is that the Corporation was persisting (in the light of its then medical advice) with endeavours to get to the bottom of things that mattered. [40] Here I count it to have acted reasonably, studiously so even, whereas Mr Ranson was simply plumping for a course of inquiry that had already proved unproductive - one which, it might reasonably be inferred, he had by his own behaviour rendered purposeless. Result [41] The appeal against the 11 February 2013 deeming of the IRP in issue is dismissed. [42] However, and given the Corporation's concessions, I accept that there was no good reason to deny Mr Ranson costs at review and thus hold him entitled to those in terms of the regulations. Roderick Joyce'Qe District Court Judge