Winder v Accident Compensation Corporation

IN THE DISTRICT COURT AT DUNEDIN [2013] NZACC 103 ACR 668/11 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN YVONNE WINDER Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 24 January 2013 Appearances; P Sara for appellant H Evans for respondent Judgment: 19 April 2013 JUDGMENT OF JUDGE RODERICK JOYCE QC Reason for appeal [1] On 31 May 2011 Care Advantage determined that Ms Winder had achieved vocational independence with the consequence that her entitlement to weekly compensation ceased. [2] Ms Winder sought a review of that determination but her application was unsuccessful and she has since appealed. Background [3] I record the following: YVONNE WINDER V ACCIDENT COMPENSATION CORPORATION DC DUN [2013] NZACC ACR 668/11 [19 April 2013) -" - - In 1993 Ms Winder, then working at a care home, injured her back while lifting a heavy washing basket. Five years later she began experiencing significant symptoms at the site of that injury and a CT scan revealed an LS/S1 bulge abutting the SI nerve root. Conservative treatment failed to improve her condition and she underwent an L5/S1 discectomy in 2001 after which she was able to resume work in her former occupation - this in January 2002. She told the reviewer that over time her back symptoms began to reappear and that by 2007 she was experiencing quite severe back pain which was exacerbated by movements such as twisting and bending, In March 2008 her GP put her on light duties which included a restriction on lifting, bending and twisting. But, she said, the reaction of her employer was to reduce her working hours from 60 to 40 per week rather than obey the GP's instruction, although from about June 2008 until she finished work altogether in the August of that year she did not do any lifting. She had subsequently been in receipt of weekly compensation and that was still the case when the Corporation embarked upon the vocational independence path in 2009. After an initial occupational assessment she had been put on a fitness programme involving swimming and physiotherapist supervised exercises, Other rehabilitative efforts included her going to the Methodist Mission to learn retail skills and attendances for computer lessons but she complaining in each case that her then physical limitations substantially interfered with these rehabilitative efforts. In 2010 underwent a medical assessment by a Dr Marshall in Christchurch. She was obviously unhappy about this experience including because the tests he put her through had (she said) caused her severe discomfort, And her view was that his written assessment did not reflect "what happened on the day and what he had told me". At the review hearing (5" September 2011) she said: From a pain scale where ( is no pain and 10 is the worst imaginable pain my daily pain levels sit at around 8 or 9. This is even with the range of pain relieving medication that I take every day. To manage my pain on a daily basis I alternate from sitting and standing and walking around. I am unable to do either of these for sustained periods. My morning is alternating between sitting and walking around with sitting for a maximum of 15 minutes at a stretch, getting up and walking around, sitting down for another 15 minutes and so forth. In the afternoon I lie down for an hour to try and get some relief ... the pain relieving medication I take does affect my concentration levels. Sometimes I feel very light headed ... I manage housework by extending the activities over a much longer period (and she then gave several examples) ... I have poor quality sleep because of my back pain. I am in bed by 8.30 pm because my pain levels by that stage are intolerable and I turn my light out at 10.30 pm and will sleep with the aid of medication until about 1.15 to 1.30 am and the I have to get up several times to walk around. Rarely I will get back to sleep again after 1.30 am. A good morning for me I see me rise at 6-6,30 am ... included in my daily regime are some (prescribed) exercises. ... these are gentle stretching exercises which take me about 20 minutes to do in the morning. These exercises do not relieve my pain at all. ... on 21 June 2011 I had an injection into my spine at the Marinoto Clinic ... this injection did not work. [Before turning to the medical or associated evidence, I note that it is very apparent from the record that, over time, Ms Winder has been the recipient of numerous rehabilitative efforts arranged by the Corporation or its accredited agent, as she herself has reportedly acknowledged - see the 25 May 2009 Pain Management Psychological Services Completion Report.] Ms Winder had undergone an FCE assessment of functional capacity on 23 December 2009. That had identified a range of possibly suitable to her capacity jobs and ended with this summary: Clinically she has generalised stiffness of her lumbar spine. Her back appears stable with no other protective or compensatory movements noted during the FCE. Physically she demonstrates below average strength although this may be affected be apprehension. She has a poor level of fitness. She automatically uses her back for manual handling tasks rather than her legs, which indicates ability of her spine to absorb normal daily handling and movement stresses. Psychologically she is apprehensive and mildly hypervigilant to her symptoms. Some psychosocial factors are present, Functionally I estimate that she has ability to work to a light- medium level of work. Some advice on minimising her discomfort on prolonged standing has been provided and 2 simple exercise to help maintain spinal stability, Vocationally she has the physical capacity to work at 9 of the jobs in her IOA and could work at a further 2 depending on the actual job. A 14 September 2010 Integrated Assessment Report provided by an occupational therapist includes this note: In 2001 Mr McMahon performed a discectomy of I of the lumbar discs (not specified at assessment). At this time Mr McMahon was able to see significant nerve damage which at the time he indicated would be permanent. There is no report from Mr McMahon on the file the Court has, but I do see a GP's letter to the Corporation of 8 February 2010 that refers to Ms Winder having a permanent nerve injury as a result of a severe disc prolapse that was not diagnosed by orthopaedic services until she came to surgery. Of this the GP asserted: This has left her with severe radicular pain in her leg, despite medication, and incapacity with the caregiving duties, for which she is trained. A 21 December 2010 VIA medical practitioner questionnaire (completed, obviously, by the GP then attending Ms Winder) notes: Patient has high work motivation, and is prevented only by the severity and chronicity of her nerve injury (which was not recognised until surgery, several years after her injury), The earlier mentioned report from Dr Marshall of Christchurch is dated 9 May 2011 and it seems obvious that, for the purpose of assessing and reporting, Dr Marshall was provided with a reasonably comprehensive range of then existing information concerning her case. It is in the light of that observation that I record the following: He noted that an MRI in August 2008 contained this comment: There is post operative changes at 15/s, distorting the right $1 root, and narrowing the exit foramen for the right LS root, with degenerative change and disc bulge at 14/5 but no obvious nerve root compression. No L3 nerve root abnormality. She had told Dr Marshall that: (a) She was better than she had been but her back still restricted her a lot, although she had got used to it. (b) She had difficulty getting down steps and walking down hill. (c) She experienced pain in the base of her back emanating from the posterolateral aspect of the right thigh and calf into the foot where she got some pins and needles. (d) She described the pain as being like a knife inserted and twisted when at its worst and said that the leg tended to feel numb and needed to be rubbed and that she had continuous pain but it tended to be worsened by excess activity or sometimes by "over static position", (e) She was taking a range of pain-containing medication; Upon examination, Dr Marshall reported in terms including that: She was walking with even gait She sat through the interview (commenced 12 noon completed 12.50 pm) in apparent comfort Mounting and dismounting from the couch was reasonably performed There were some limitations of movement but none is was extreme She could squat most of the way down, but not fully, onto her haunches and rose from there normally She was somewhat overweight and of average height Dr Marshall mentioned that Ms Winder indicated right sided radicular pain but, he said, there were no significant and, definable features of radiculopathy on examination. He said that "One would reasonably anticipate some difficulty with heavy lifting or heavy physical demand. A functional capacity estimation has been performed estimating physical capacity of full- time light-medium, to medium work. I don't think that position or constraints would be of significant limitation other than perhaps in areas of driving work where one is constrained in one spot completely". He went on to find that Ms Winder had the physical capacity to work for 30 or more hours per week in the occupations of chocolate packer, sales assistant (food, drinks, and general groceries), sales assistant (pets, animal care supplies), sales assistant (gardening and landscaping supplies), sales assistant (gifts, crafts and flowers). [His support for the job of chocolate packer did not pass muster at review but the others did. ] According to Dr Marshall Ms Winder had been moderately receptive to the idea of the other jobs, indicating that she thought she might have some slight pain aggravation, but none that would be significant. He had then gone on to exclude 3 other occupations (aged or disabled carer, personal care assistant, nursing support worker) as too physically demanding. On 31 May 2011 Care Advantage wrote to Ms Winder reporting the essence of Dr Marshall's findings, in light of which it held her vocationally independent. Dr Hancock [4] I turn now to the report of Dr Hancock, who like Dr Marshall, is a medical professional qualified in the occupational area, He saw Ms Winder on 4 July 2011 at the request of Mr Sara. He then reported that Ms Winder had ongoing symptoms of low back and right leg pain that impacted in these ways: Unable to stand or walk for more than 20 minutes without marked aggravation of pain. Any activity involving bending or twisting of the back or reaching forward aggravated pain. Unable to lift anything but the lightest of weights and as a result had to carry her shopping into her house in multiple 'small lots'; and unable to lift her young grandchildren. Difficulty with a number of aspects of personal care. Unable to hang her washing out. Only able to drive for short distances. Unable to look after her garden. Housework carried out in short "bursts". Unable to sustain an intimate relationship. The power analgesic medication that she took for her pain caused problems with concentration and wakefulness. Her unrelenting pain made her feel very tired such that she was normally in bed by 8.30 pm, [5] His physical examination was described in these terms: Moderate restriction of all movements of lumbar spine. Lower back tenderness extending to the right paravertebral muscles. Some difficulty getting on and off the examination couch as it was of adjustable height. Straight leg raising 30 degrees on the right and 60 degrees on the left'. Muscle power and sensation diminished in her right lower leg and foot and the right knee and ankle jerks were unable to be elicited. [6] Of job sustainability Dr Hancock said this: Sales assistant - food, drinks and general groceries; It appears that this particular job was suggested for Yvonne as she worked in a "corner dairy" for a while when she was 15 years of age. (It) involves frequent standing and walking, stretching, bending and twisting as well as lifting, pulling and carrying. These are all activities that significantly aggravate Yvonne's back and leg pain and for this reason I do not believe that she has the physical capacity to work for 30 hours or more per week in this occupation. Sales assistant - pet and animal care supplies: It appears that this particular job was suggested for Yvonne as she has a dog and 2 cats. This job involves frequent standing and walking, stretching and twisting, lifting, pulling and carrying and bending. (And here the doctor repeated verbatim the reasons why he rejected the first mentioned sales assistant job as not viable) Sales assistant - gardening and landscaping supplies; It appears that this particular job was suggested for Yvonne because she has a garden. This job involves frequent standing and walking, stretching and twisting, lifting, pulling and carrying and bending (and he repeated what he had said of the first job). Compare Dr Marshall on 9 May 2011 "straight leg raising was possible to 75 degrees with the right leg and 80 degrees with the left leg" Sales assistant - gifts, crafts and flowers; It appears that this particular job was suggested for Yvonne as she has flowers growing in her garden. (And here he continues in precisely the same terms as for the last mentioned job). Thus he held her not to have achieved vocational independence from a medical point of view. [7] His views were duly referred to Dr Marshall for comment and I think it simplest to set out precisely what he said in reply; Dr Hancock's main premise is that all 5 of the positively adjudged jobs involve standing, stretching, bending, twisting, lifting, and carrying. He indicates that these are all activities that aggravate Yvonne's back and leg pain and that he does not believe she has the physical capacity to work for 30 hours or more per week in any of those 5 occupations for that reason. He also criticises the occupational rationale for postulating the jobs as suitable. I would not choose to enter into that debate on that latter area as that is not my area of expertise as a medical assessor, The same might be said for Dr Hancock. In terms of the rationale stated by him that the activities would significantly aggravate the back and leg pain such that she does not have a capacity to work for 30 hours per week I disagree. In all of the jobs there would be some degree of ability to shift around while performing the work so that one would not be standing static throughout the day. As stated in my original report I don't feel that positional constraints would be of significant limitation other than if she were completely static in an area such as driving The reason for her losing her job as a caregiver was because she was not able to lift a big lady. Otherwise she was performing the work at that time and managing the tasks required of her as a caregiver. This would fit with the functional capacity evaluation performed indicating ability to work in full time light to medium, to medium work. These findings, would not be in keeping with the abject restriction suggested by Dr Hancock's report but would be in keeping with the vocational independence findings from my report. Thus, from all of this, Dr Hancock's opinion does not cause me to reconsider the conclusions made in the VIMA report. I don't particularly have further helpful comments to make on Dr Hancock's report. [8] Mr Sara reverted to Dr Hancock for his comment on Dr Marshall's comment, I record the response: I particularly noted his comments which suggest that Yvonne would not suffer any aggravation of her back pain in the list of jobs as they would allow her to move about rather than having to maintain static posture. While I would agree with that assertion to a degree, I would reiterate the opinion, that I expressed in my report of 5/07/2011, that activities such as bending and stretching, all of which are cited as occurring frequently in all the listed jobs, would significantly aggravate Yvonne's back pain irrespective of whether she was able to move about. accept Dr Marshall's point that my comments on the occupational rationale for the suitability of the listed jobs were beyond my area of expertise. My intent was to reflect the facts, as described to me by Yvonne, rather than to imply any criticism. Ms Winder's evidence revisited [9] Given that Iis Winder gave evidence personally on review, so that the reviewer had the opportunity in a very direct sense to see what was to be made of that, I now note the reviewer's conclusions which were these: Quite understandably, it was clear to me that this issue is one of major significance to Ms Winder and that she was anxious her evidence would convey the full extent of her physical limitations, However, Mr Eggleston's cross-examination raised a number of inconsistencies in Ms Winder's evidence, For example, the FCE assessment noted that Ms Winder reported a mild increase from 5/10 plus pain to 6/10 plus (strong plus pain) at the end of the tests. Ms Winder's evidence at the hearing was that her pain at that time was "extreme". At the end of the assessment Ms Winder said she had experienced great difficulty even getting into her car due to pain. Ms Winder said that the FCE report had not recorded her views accurately. The difficulty I find with accepting Ms Winder's more recent recollection of events, is that there is no corroborating (sic) evidence to suggest that Ms Winder sought to raise the issue of any inaccuracies or misreportings at the time or have the report amended. I find the same can be said of Ms Winder's evidence relating to the record of her discussions with Dr Marshall during the VIMA. By way of further example, I note that Ms Winder's walking tolerance was stated in Dr Hancock's report as no more than 20 minutes before her pain condition became aggravated. In Ms Winder's oral evidence she stated her tolerance was 10-15 minutes. This seems a significant difference without there being any clear reason or explanation for that difference. The FCE noted; She reports a high level of pain appreciation and hypervigilance to her symptoms. Some psychosocial issues are reported and she reports a severe level of disability in her spine. Her FCE results do not indicate that her level of disability is as severe as she reports. For these reasons I find there is a noticeable subjective element to Ms Winder's evidence. I must take this fact into account when balancing Ms Winder's evidence against other evidence on file, [10] Of course despite not having had the advantage enjoyed by the reviewer of seeing and hearing Ms Winder give evidence personally, I am perfectly entitled to make what, in overall context, I do of that evidence. On that account I now note certain elements of the transcript of that evidence that, as I recall, got special mention in the course of the appeal hearing. [11] Specifically I refer to the following; At p 7 reference to the need to stop 5 or 6 times for 10 or 15 minute breaks when driving, say, to Riverton. At p 8 the need to use a long handled device to clean between the toes and a stick with a handle that operates claws to pick up anything dropped off on the floor. At p 12 difficulty getting into a car. At p 13 the assertion "the right leg's never on the floor ... because I can't bend with it straight, 2 feet on the ground" At p 16 reference to regularly walking round, alternating that with sitting, during the day and an ability to walk for about 10 or 15 minutes "on a good go", At p 19 a rehearsal of the early to bed pattern. At p 21 this exchange; Mr Eggleston: So now you don't think that you could work at all, even for 1 hour? Ms Winder: Not unless they permitted me to sit, kneel, stand; no. Because I can't lift and I can't pick things up off the floor. [12] I am bound to say that, read as a whole and in light of the rest of the evidence that of Ms Winder leaves with me the clear impression that she consistently sought to accentuate, if not at times exaggerated, the negative. In short, my reaction to her evidence is one in accord with that of the reviewer. Discussion [13] To pick up where I had just left off, I record that I find Ms Winder's evidence, particularly when considered alongside the FCE and Marshall evidence deficient in terms of credibility and reliability. [14] Otherwise and in this case, resolution comes down to the Court's conclusions concerning the utility of the competing opinions of Dis Marshall and Hancock, [15] The fact that Dr Hancock first saw Ms Winder several months after she had been examined by Dr Marshall (in light of whose report the Corporation determination brought in question was made), is not one I consider to be of any account. [16] The time gap is relatively brief, and I see nothing in the evidence to suggest the likelihood of any significant change in Ms Winder's relevant health circumstances in the interim. [17] But I do find the views of Dr Marshall to be very much more persuasive than those of Dr Hancock, an observation I make with all due respect to the latter medical professional. I reach that conclusion because; I recognise Dr Marshall's report as one bearing all the hallmarks of objectivity whereas, and again with respect, Dr Hancock's comments in respect of the various job options (options earlier recognised as occupationally suitable by the assessor of that) appear unduly to reflect (so I infer) the input of Ms Winder. True, Dr Hancock sets out a veritable catalogue of problems said (by Ms Winder obviously) to beset her physically but then (for reasons already expressed) I have found it necessary to record considerable reservations concerning the utility of her self-reporting. It might - in the overall scheme of things - be a relatively minor matter but I also notice the quite significant difference between Dr Marshall's findings as regards Ms Winder's ability with straight leg raising and that reported by Dr Hancock, Reading the two reports alongside each other (and with regard throughout to the evidence of Ms Winder herself and all else put before me) I am left with the clear impression that Dr Marshall (whose report was, as the reviewer recognised, only questioned by Ms Winder very belatedly) gained the more accurate impression of the realities of this case than Dr Hancock was able to do. In short then, given what I have made of Ms Winder's evidence and my just explained, and distinct, preference for Dr Marshall's view of the case, I would hold that the reviewer got it right: in other words, the Care Advantage determination of 31 May 2011 was entirely justified. Result [18] The appeal is dismissed. Roderick Joyce Q District Court Judge