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New Zealand Accident Compensation Appeals - ACC Appeal Decisions |
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New Zealand Accident Compensation AppealsLast Updated: 20 June 2008
IN THE DISTRICT COURT
AT WELLINGTON
DECISION NO. 247/2007
UNDER The Injury Prevention, Rehabilitation and
Compensation Act 2001
IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. Al 321/06)
BETWEEN DIANNE MILLAR
Appellant
AND ACCIDENT COMPENSATION
CORPORATION
Respondent
Hearing: 19 March 2007, 12 June 2007
Appearances: Mr I S Young-Gough for appellant Mr J R Sumner for respondent
Judgment: 13 November 2007
RESERVED JUDGMENT OF JUDGE D A ONGLEY
[1] This appeal is a challenge to a vocational independence assessment on a number of grounds, including alleged deficiencies in the vocational rehabilitation process as well as the independence allowance assessment process.
[2] Mrs Millar injured her right elbow in 1989, when she knocked it on a freezer door while she was working as a produce manager for a supermarket. Cover was granted under the Accident Compensation Act 1982. Since then she has been entitled to weekly compensation. Although the right elbow injury resolved, it left her with a chronic pain syndrome and reflex sympathetic dystrophy. Mrs Millar also had a non-covered left knee condition for which she had surgical reconstruction in 1980.
- [3] Over the intervening years there have been many assessments for both entitlements and for treatment for the elbow injury. Mrs Millar had ulnar nerve decompression and release surgery to her elbow in November 1989, and in March 1990 further release of the ulnar nerve and release of the lateral epicondyle. Neither operation was successful. In 1998 she briefly attended the chronic pain clinic in Wellington. The physical injury has been described as relatively minor and it has been difficult to assess the severity of the chronic pain condition.
[4] In 1991 Mrs Millar's permanent disability was assessed at 10% because of persisting pain, weakness and loss of use of the right arm. In 1992, Dr Phillip Baker, Neurologist, diagnosed chronic pain syndrome possibly complicated by a reflex sympathetic dystrophy and he suggested symptomatic treatment for chronic pain. In a further assessment in September 1992 by Mr Gale Curtis, orthopaedic surgeon, her permanent disability was assessed as 15%. Mr Curtis confirmed the diagnosis of chronic pain syndrome and sympathetic dystrophy and thought that she would not return to the work force. He thought also that she had a loose body in her left elbow which would sometimes lock up two or three times a day. He did not think surgical intervention would be helpful.
[5] Mr Curtis wrote to Dr Cherry on 12 October 1993:
"She clearly has problems with the left elbow. There was a tennis elbow problem here in the past but this seems to have been supplanted with a loose body, which at times locks up two or three times a day, not for long, she shakes it clear and then will go three or four days without it happening again.
There is no doubt, radiologically she has a loose body and theoretically we should be able to get it out through the arthroseopy but I can recount many times when you just can't do it."
[6] In February 1996, Dr Cherry wrote that he did not think that Ms Millar would ever be likely to return to the work force as her symptoms were continuing and restriction on activity basically involved anything that required movement in her right elbow. In November 1996, Dr R D Wigley, rheumatologist, reported that her pain had not settled despite local injection and surgery. Her pain continued to be brought on by sustained activity and, once triggered, it would go on for the rest of the day or until the next day. A Wellington Pain Clinic assessment in 1998 noted that Mrs Millar reported her symptoms as:
"- Pain over back of right elbow
Very occasionally electric shock type of pains into medial 2 digits
[7] The assessment recommended that she could benefit from a cognitive- behavioural approach to pain management, which would aim to provide a range of skills to help her feel more in control of her situation.
[8] Mrs Millar was seen shortly after that by Mr Alan Thurston, orthopaedic surgeon, who reported that she seemed somewhat unhappy and a little angry about the response she received at the pain clinic. He then took some time with her explaining the psychological aspects of pain, pain management and pain appreciation and impressed on her that the doctors at the clinic believed that she had pain and encouraged her to undertake a course of counselling to help her deal psychologically with her chronic pain. She seemed more ready to accept this and would consider attending a course.
[9] On 7 March 2007 Dr Mark Haywood, an occupational practitioner, assessed Mrs Millar as able to return to her pre-injury employment as a supervisor of the fruit and produce department of a supermarket and also assessed that she would be fit to work in a number of other occupations including general retail work. Mr Young-Gough submitted that Dr Haywood's opinion was unsupported by any of the other medical evidence and should be treated as an aberrant report. It was rejected in a review in 1991 in which Mrs Millar's weekly compensation was reinstated.
[10] Mr Stephen Bentall, orthopaedic surgeon, reported in August 2001 concerning neural changes. He said:
"My diagnosis is of chronic pain syndrome right arm. The altered sensation in the ulnar aspect of the hand and dorsolateral aspect of the forearm is probably secondary to spinal cord and central changes, due to the chronic pain rather than any peripheral nerve problem as evidenced by her normal
nerve conduction studies. The pain she experiences is clearly real, and quite debilitating and limiting in her day to day life. There is no surgical answer to this and the physical injury to her elbow has healed. I will try her with some Catapress patches 100mgs 1 weekly, and Tegretol 100mgs daily increasing stepwise to 200mgs twice a day to try and improve the pain syndrome. It is to Dianne's credit that she has maintained a full range of movement of her shoulder, elbow, wrist and hand and hasn't allowed the arm to become stiff and useless."
[11] In early 2002 a draft individual rehabilitation plan was prepared and in April
2002 an initial occupational assessment recommended five suitable job types and stated that Mrs Millar had no barriers to seeking or obtaining employment other than a lack of job search skills or knowledge of the labour market. An initial medical assessment in April 2002 by Dr Andrew Porteous recommended a number of suitable occupations and noted that no further medical treatment was appropriate. In recording his discussion with Mrs Millar, Dr Porteous noted that she would not consider sales assistant work and he noted the current situation regarding pain management. He wrote:
"We then went on to discuss sales assistant. Mrs Miller's comments are that she wouldn't think of doing this one. I believe again that this would be sustainable 35 hours or more.
There has been no comprehensive pain management. She has recently stopped amitryptiline. This was prescribed by Dr Wigley some time ago. She didn't like the weight gain, and she thinks that she doesn't need it now. In my opinion, she could be reviewed in terms of pain management pharmacology. Amitryptiline would be the ideal drug to encourage her to go back on.
She apparently is having some pain management psychological input at the Catalyst course she is now attending. She has a relaxation tape. 1 believe that this is an important part of pain management and it sounds as though this has been covered.
She would benefit from some physical fitness reactivation.
An ideal rehabilitation programme would involve a graduated return to work with a work trial."
[12] Psychologist, Gary McRae, reported concerning pain management in May 2002. In his view, Mrs Millar had adopted a sensible approach to pain management. Her strategy was to avoid overuse, and also to avoid medication. He reported that her daily planning was in line with that advocated in Cognitive Behaviour Therapy. At the same time, a preliminary work trial report noted that "she had a positive attitude and contributed to the group". She had only attended two days a week, which may have been because of limitations on her ability to travel between Castlepoint and Masterton. Her GP Dr Cherry wrote to the case manager to say that:
".. a return trip from home to either Masterton or Carterton causes severe exacerbation of her pain levels to the extent that she requires intra muscular pain relief to cope with the pain that develops as a consequence of her travelling in the car so therefore she is obviously able to ride in a car for these distances however the pain that this causes is obviously quite significant and debilitating."
[13] In a final report physiotherapist Jo Beetham wrote:
"I would like to request a further 4 pain management sessions with a psychologist. Dianne does not appear to have strategies to deal with the nature of her pain and it would be valuable for her to understand the neurobiomechanics of chronic pain so that she can manage functional tasks at home and at work. Dianne reported that she attended pain management while attending the WPP however she was told that she manages her pain well by stopping activities and using injections every 3 — 5 days which in my opinion may perpetuate the chronic pain cycle."
[14] In this material there was some conflict of opinion as to whether Mrs Millar was adopting appropriate pain management. Mrs Millar had not fully involved herself in the rehabilitation programmes, but her reasons for non-attendance were supported by Dr Cherry. There is nothing in the reports to suggest that she was avoiding programmes directed towards work fitness, in fact her attitude was reported as positive.
[15] In August 2002 Mrs Millar had difficulty with a work trial at Reeve Office Products Limited. Stu McCann and Associates reported that she attended the trial on only two days on which she worked four to five hours, and she rang to say that she could not attend on two other days. She failed to attend the rest of the work trial. For the time that she attended, she was reported to have enjoyed the work and to have been pleasant and enthusiastic. The work involved preparation of invoices and picking items from shelves with no heavy lifting. She was able to pull an order trolley, but avoided pushing it. On about the fourth day of the trial Dr Cherry wrote to the case manager:
"This is to confirm that I have been consulted by Dianne last night after an attempted work trial lasting 4 hours during the day yesterday. She had an
extremely severe exacerbation of her right elbow pain requiring intra muscular pain relief as her oral pain relief did not bring the pain under control. Her work activity was particularly strenuous and I understand involved assembling orders and packaging small parcels together."
[16] Jo Beetham wrote in September 2002 to say that Mrs Millar had attended 12 rehabilitation sessions and had made significant gains. She reported:
"Dianne does experience difficulties with the drive to sessions, however she understands that driving in the future will be a necessary part of her employment. Dianne was unable to complete the work trial at Reeves Office Supplies. In my opinion starting a work trial for 4 hours daily following a 12 year absence from the workforce was unwise. Dianne may have made good progress with a 2 hour work trial with worksite input from an occupational therapist experienced in chronic pain conditions."
[17] Mrs Millar continued attending the rehabilitation sessions and Ms Beetham in her final report stated:
"I would support a graduated return to work after a further 3 months of monitoring of the reconditioning programme. This could benefit Dianne as she has made good progress to date however the good results inside the programme need to be equated with increased functional abilities at home and in the community."
[18] A second IMA was completed by Dr Seemann on 3 August 2004. He recommended sustainable occupations of hotel and/or motel receptionist; ticket seller; sales assistant and teacher aid. In relation to the position of sales assistant, he stated:
"Sedentary to light work. Depending on worksite may require significant heavy lifting, pulling or carrying. However this would be dependent on the site. Would also not be able to lift heavy items e.g. groceries for scanning. However in a quiet sales environment this occupation may be sustainable but this would be site dependent".
[19] He recognised that Mrs Millar's chronic pain syndrome was "significant pain requiring opiate therapy (Methadone and Fortral)", and that she took Fortral injections on a regular basis and Methadone up to 10mg bd. But he nevertheless recommended that the appellant improve her aerobic fitness, and that a return to work could be accomplished with a graduated programme. In 2004 there followed a work trial with Tinui School as a teacher aide, which did not go well. Mrs Millar missed two days and part of another day. It has been recorded that, while she
enjoyed the work, she could not cope with the pain that flared up during the course of the work and which persisted after each work day.
[20] In March 2005 an MRI scan was obtained. Mr Ian Denholm, orthopaedic surgeon, reviewed the scan and agreed with the diagnosis of chronic pain syndrome. He recommended renewed consultation with the regional pain clinic. Mrs Millar then had a further activity based programme. A completion report in July 2005 stated the opinion that she had the potential to make a return to work, and with support a work trial would be a good option following her exercise program.
[21] The graduated return to work recommended by Dr Seemann in 2004 was not accomplished. Instead, after the activity based programme, the Corporation in 2005 referred the appellant for a vocational independence assessment to ascertain whether she was capable of sustaining full time employment. The case manager's summary on 17 August 2004 was as follows:
"Dianne has been supported in her rehabilitation by ACC. Following mediation further pain management and Activity-Based programmes were implemented. Dianne attended a Work Trial at Tinui School. However pain issues with the need to travel distances resulted in Dianne not attending as many days as she would have liked. Dianne has not recently attended an Inpatient pain Management programme as it would lake her away from home and has stated that she does not believe that the one she had already attended in Wallington had been of much help. Her GP is managing her pain therapy and Dianne states that with the methadone medication her pain has significantly improved (IMA comment 3 Aug 2004). On 9 August case manager discussed another work trial with Dianne as Dianne feels that the distance to travel and associated pain is an ongoing issue. Following discussion with Manager and conversation with Dianne it is decided that there will be no work trial."
[22] Mr Young-Gough wrote on 12 September 2005 objecting to that course on the ground that rehabilitation was incomplete; that Dr Seemann's report in 2004 had identified only one sustainable job and recommended a graduated programme for return to work; that the draft 1RP contained jobs that Dr Seemann had considered unsuitable; that there had been no further work trials; and that other interventions on the draft IRP showed no outcomes. While maintaining those objections through Mr Young-Gough, Mrs Millar selected an occupational and medical assessor from the list provided.
[23] The Vocational Independence Occupational Assessment (VIOA) report was completed by Carolyn Silverwood from PsychEnigma on 16 January 2006. She identified suitable work options as: hotel and/or motel receptionist; sales assistant; ticket seller and teacher aide. The job details sheet for sales persons and
demonstrators (52111) stated "Sales Assistant in an outlet where the products are light such as clothing or fashion related products". This job details sheet was in the name of "Wendy Millar", an error which has caused considerable debate and speculation. The argument about the wrong name is considered later in this judgment.
[24] On 10 January 2006, the appellant's GP completed a questionnaire stating that Mrs Millar's capacity to work was limited to light non-repetitive work and with no driving. It was also noted that she was awaiting knee replacement surgery for a degenerative arthritic condition.
[25] A Vocational Independence Medical Assessment (VIMA) report was completed by Dr Seemann on 14 February 2006. Under the heading 'History and Treatment of Injury', Dr Seemann discussed the pain suffered by the appellant and the medication taken to assist dealing with the pain. Under the heading 'Relevant Non-Accident Related Medical Conditions', Dr Seemann stated that the appellant has had problems with her knee and ankle, with previous surgery on her knee. He concluded that either a teacher aid or sales assistant position would be sustainable. He noted that Mrs Millar said, in relation to the sales assistant position, that she would have difficulty because in many circumstances she would have to repeatedly handle goods and this would increase pain. Dr Seemann commented:
"I agree with Mrs Millar's comment. However the job detail sheet refers to a very specific situation, i.e. a retail outlet in clothing or fashion related products. In my opinion in this particular circumstance this occupation is sustainable".
[26] On 19 April 2006, Mrs Millar and Mr Young-Gough met with the case manager to discuss Dr Seemann's assessment. There is no minute of the meeting. It was not recorded on the Pathways record nor raised in evidence at the review hearing. Mr Young-Gough says that it was not expected that the Corporation should then issue its decision because there were still matters under discussion, but the decision was issued by a letter of 28 April 2006, deciding that the appellant had vocational independence.
- [27] It transpired that the case manager had written to Dr Seemann by fax dated 14 March 2006 in the following terms concerning the writing of the medical assessment report:
"Please find attached the Job Detail Sheet as requested for Dianne Millar. I have not sent the Vocational Independence Medical Assessment out to Dianne yet as I needed clarification from you in regards to the Sales Assistant (light duties) option. I would be grateful if you would amend the report to clearly state whether Mrs Millar would be able to sustain the job as detailed in the Job Sheet Sales Assistant (light duties). I would then pass it to the Branch Medical Advisor for consideration before sending it out to Dianne.
There is no need to send out the amended VIMA report to Dianne as we will do this once the BMA has checked it out."
[28] Dr Seemann's report was dated 14 February 2006. After the fax of 13 March he issued a modified report still bearing the date 14 February 2006. The case manager received that on 23 March. It must have been sent to the appellant shortly afterwards because Mr Young-Gough wrote on 31 March referring to the report and questioning the delay. The case manager replied on 4 April explaining that Dr Seemann was asked to clarify his opinion regarding the light duties option because it was not clear to the case manager what Dr Seemann was saying in his report. The letter stated that Dr Seemann had sent an amended VIMA report. The case manager then met with the appellant and Mr Young-Gough on 19 April 2006 and the decision was issued nine days later. Mr Young-Gough made a number of submissions concerning the Sales Assistant (light duties) Job Details Sheet, and concerning the case manager's conduct in requesting Dr Seemann to clarify his report.
[29] The appellant's submissions in this
appeal point to a large number of alleged shortcomings or irregularities in the
vocational
rehabilitation and vocational independence assessment process. Many
of the submissions rest on failure of the respondent to provide
evidence of
events.
Evidential onus
[30] Treatment of the evidential onus has been dealt with recently by the Court of Appeal in ACC v Ambros CA172/05, 20 July 2007, in which the Court said:
[55] As pointed out by the Court in Ithaca (Custodians) Limited v Perry Corporation [2004] 1 NZLR 731 at [44] — [47] (CA), the term burden of proof has been used in two quite distinct senses — see Williams "Burdens and Standards in Civil Litigation" [2003] SydLawRw 9; (2003) 25 Syd LR 165. The first is a reference to the legal burden. The legal burden is what must ultimately be proven by a person in order to win the case. Equally, it can refer to the evidential burden. The term evidential burden is, in turn, used to refer to two quite distinct notions. In the first sense, it means the burden of adducing evidence on an issue on pain of having the trial Judge determine the issue in favour of the opponent. The second sense in which the phrase is used refers to the burden resting upon a party who appears to be at risk of losing on a given issue at a particular point in a trial. This merely involves a tactical evaluation of who is winning at a particular point which can shift depending upon the trial dynamics. This is often referred to as the tactical burden.
[31] The Court referred to Lord Mansfield's famous precept in Blatch v Archer [1774] EngR 2; (1774) 1 COWP 63 at 65; [1774] EngR 2; 98 ER 969 at 970:
It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.
And went on to refer at length to a judgment of the Supreme Court of Canada delivered by Sopinka J in Snell v Farrell (1990) 72 DLR (4th) 289 at 301 (SC), and concluded:
[63] While [Atkinson v Accident Rehabilitation Compensation and Insurance
Corporation [2002] 1 NZLR 374 (CA)] is clear that in New Zealand the legal
burden to prove causation in accident compensation cases remains with
the
claimant and does not shift to the Corporation, the case does not rule out a
shift of the evidential burden, in either of the
senses set out above at [55],
passing to the Corporation. The Canadian Supreme Court approach is for a
tactical burden to pass to
the defendant when some evidence of causation has
been adduced by the plaintiff It is unclear whether the High Court of Australia
was speaking of a true evidential burden or of a tactical burden passing. We
favour the view that it is a tactical burden that passes
as the Supreme Court of
Canada held. indeed, we endorse that Court's approach, including the reliance on
Lord Mansfield's precept,
as being applicable in the accident compensation
context.
[32] In the course of submissions Mr Young-Gough stated on a number
of points that there was no evidence of a particular fact. It
would be a heavy
burden on the
respondent to bring evidence on every point of the progress of a claimant's entitlements over several years in order to meet the risk that a fault might be raised in argument. The burden of showing grounds for appeal lies with the appellant. If the appellant shows an evidential basis for an allegation of fact, the tactical burden may shift to the respondent. A "no evidence" submission on behalf of an appellant is unlikely to be successful without first having an evidential foundation that there was a relevant act or omission for which a remedy should be available. Of course the Court must approach the question of the evidential burden with due regard to the fact that the respondent is the record keeper. Some matters are primarily within its knowledge, while others are within the knowledge of the claimant.
[33] In order to obtain a remedy, the act or omission will also have to be relevant to the issue before the Court, a matter which I will address shortly. In the following separately numbered paragraphs I have tried to set out most of the points taken by Mr Young-Gough for the appellant. A number of these were advanced by way of assertion without supporting argument. The points that were developed in argument are discussed separately and the most important of those are dealt with at the end of this judgment.
The first Initial Assessments
was submitted that Dr Porteous did not receive a copy of an IRP and that he received the flawed report from Doctor Haywood.
sustainable "in the future" because measures such as pain management were first required. Dr Porteous wrote don't believe that any further medical treatment, apart from pain management is appropriate" adding that "there has been no comprehensive pain management".
3. That the Corporation did not follow up Dr Porteous' recommendation that the
appellant "would benefit from some physical fitness reactivation" and that "an ideal rehabilitation programme would involve a graduated return to
work with a work trial". In a Mediated Agreement of 7 March 2005, the Corporation agreed to have the activity based programme carried out.
[34] These points concern an IMA done in April 2002 after which there have been other assessments and IRPs. Mr Young-Gough submits that irregularities in this initial assessment in some way invalidate the rehabilitation process and that the process was therefore not truly complete when the Corporation embarked on vocational independence assessment. That argument is central to the appeal. But shortcomings in an IOA do not usually invalidate a subsequent vocational independence assessment. As Miller J said in Weir v ACC (unrep. High Court, Wellington, CIV 2003-485-1921, 18 August 2004) the purpose of the initial assessments is to inform the vocational rehabilitation process. In this case, there is no evidence of a fundamental error affecting the whole vocational rehabilitation process. The alleged shortcomings are background material and how they may have undermined the rehabilitation process is not explained.
Individual rehabilitation plans
[35] Mr Young-Gough made further submissions in relation to the IRPs:
rehabilitation and IRPs have been carried out.
outset or in the course of some of the updates to the IRP. Not all of the IRPs referred to can be found on the files provided and it is not known if Review rights were advised in all cases. This is contrary to the decision in Weir.
either when it was initially formulated under the provisions of the 1998 Act or subsequently, and crucially, under the provisions of the 2001 Act.
consultation were upheld by the ACC Complaints Investigator.
work readiness" does not exist in the statutory provision. It is a "catch all" outcome that the respondent consistently insists and requires to be the only outcome in many cases including the present on penalty of suspension from the scheme and is quite contrary to the mediated agreement reached on 7 March 2005 whereby the agreed outcome was "Return to suitable work or work readiness for a suitable job". The respondent persists in ignoring this binding agreement.
what was previously agreed, signed by the appellant and returned. No copy signed by the respondent has been received and there is no evidence that the IRP was provided to either the Occupational Assessor or the Medical Assessor.
considered irrelevant. Relevance is a matter for the Court to decide. It is not known what was provided for in the now missing IRP.
[36] I have said earlier in this judgment that there is an evidential onus on an appellant. An appellant needs to point to some evidence to support an argument. A submission that there is no evidence that all the statutory requirements of vocational rehabilitation have been met is not an argument. It fails to address two essential features. The first is to point to some evidence that the statutory requirement was not met, and the second is to show how that is relevant to an issue before the Court.
[37] The point about lack of evidence on the Corporation's file of advice of review rights would be directly relevant in an appeal against an IRP for which those review rights should have been advised. That was the position in Weir. This is not such an appeal and the relevance of the submissions about lack of consultation and lack of advice of review rights in this appeal are not apparent.
Mr Young-Gough referred to Bidlake (90/06), an appeal argued before me on the basis that the vocational rehabilitation was unsatisfactory and should therefore not be regarded as having been completed. That is a case in which application has been made for leave to appeal. There have been a number of cases concerning the effect of an irregularity in the vocational rehabilitation or vocational independence assessment process, including Bondarenko (173/05), Purches (239/05) and Laidlaw (52/06) to name three decided independently by different judges. In Bondarenko (173/05), Judge Cadenhead said with regard to the vocational rehabilitation process at para [61]
(v) The legislation should not be approached in a pedantic and overly technical way, but should be looked at in the round to ensure that the provisions of the legislation have been carried out in realistic way. It is not correct to rigidly approach the issues as in the blood alcohol cases, but the approach should be dictated on a wider pragmatic basis.
(vi) The last principle is consonant with the administrative law requirement that a discretionary power must be exercised reasonably and the decision- maker must take into account only relevant considerations. What is reasonable will be decided on a factual analysis of the relevant evidence. The general test of unreasonableness is nominally pitched high: 'so wrong that no reasonable person could ever dream that it lay within the powers of the authority', 'so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it'. (Consitutional and Adminstrative Law in New Zealand, P.A. Joseph (2nd Ed) pp792-3, Administrative Law 8th Wade and Forsyth 366, 367).
[39] When declining an application for leave to appeal in Bondarenko v ACC (unrep. High Court Wellington, CIV 2006-485-555, 23 February 2007) Ronald Young J agreed that a failure by the Corporation did not affect the integrity of the plan where there was no evidence that the failure was a relevant factor. Judge Cadenhead applied the same principle in Wildbore 94/06, and expanded on it in U v ACC (266/06) in which examined English and New Zealand authorities and said:
[31] Balance has to be assessed on a consideration of the language of the legislation against the factual circumstances of the non-compliance. In the majority of cases it provides limited assistance to enquire whether the requirement is mandatory or directory. The majority of cases, where the requirement is categorised as mandatory or directory the Tribunal before whom the defect is properly raised has the task of determining what are the consequences of failing to comply with the requirement in the context of all the facts and circumstances of the case in which the issue arises. In such a situation the Tribunal's task will be to seek out to do what is just in all the circumstances. Lord Woolf [in R v Immigration Appeal Tribunal ex parte
Jeyeanthan [2000] 1 WLR 354] thought that the right approach is to regard the question of whether a requirement is directory or mandatory is only at most a first step. In the majority of cases there are other questions which have to be asked which are more likely to be of greater assistance and they are:
[a] Is the statutory requirement fulfilled if there has been substantial
compliance with a requirement and, if so has there been substantial compliance in the case in issue even though there has not been strict compliance?
[b] Is the non-compliance capable of being waived, and if so, has it, or
can it and should it be waived in this particular case?
[c] If it is not capable of being waived or is not waived then what is the
consequence of the non-compliance, These questions arise and will depend on the facts of the case and the nature of the particular requirement. The advantage of focusing on these questions is that they should avoid the unjust and unintended consequences which can flow from an approach solely dependent on dividing requirements into mandatory ones, which go to jurisdiction, or directory ones which do not. These principles were adopted in Attorney-General's Reference (No. 3 of 1999) [2001] 2 AC 91.
[40] It is therefore beyond argument that an error in the vocational rehabilitation process does not automatically invalidate a later vocational independence assessment. An appeal can succeed only where there has been a material consequence that affects the integrity of the result of the vocational independence assessments. Submissions on appeal are unlikely to succeed where they allege historic irregularities without tracing the errors to some logical consequence that impeaches the integrity of the vocational independence assessment. About 42 separate points have been advanced in support of this appeal and the search for relevance is a very difficult exercise.
[41] A particular challenge concerned the case manager's decision to deem an IRP agreed on 3 November 2004. Mrs Millar was given an updated draft IRP on 15 October 2004 and was given 21 days for consultation with her GP. She contacted the orthopaedic surgeon, Mr Denholm, and was in the process of contacting her GP Dr Cherry and discussing the draft IRP with Mr Young-Gough, when she was informed by letter of 3 November 2004 that the IRP was deemed have been agreed. That was obviously a premature and incorrect decision by ACC. The matter was submitted to the ACC Complaints Investigator, who made a finding that ACC's failure to maintain contact with Mrs Millar following the meeting on 15 October
2004, or to discuss any concerns she had with her IRP, was unsatisfactory. The finding noted that the failure had caused unnecessary stress and ultimately caused a breakdown in the relationship with ACC. But there is no evidence that this failure had any eventual bearing on vocational rehabilitation. The proper course was to recognise the error, to set up the IRP correctly, and to proceed from there. The respondent's error cannot be preserved as a ground for holding a later vocational independence assessment invalid. The Complaints Investigator required the Corporation to recognize its error and there was then an opportunity for the IRP to be properly addressed.
[42] The "catch all" outcome of "Return to work or work readiness" is a shorthand expression that probably attempts to reflect the purposes of vocational rehabilitation. It suggests trying to either get back to pre-injury work or otherwise attain suitability for another full time job. I agree that it is inadequate and perhaps misleading in many cases because it can cause or continue a misunderstanding as to whether the purpose of rehabilitation is to regain work capacity or to achieve capability for some other full time work. There was no such confusion in the present case where evidence shows that the appellant had no wish to return to her pre-injury work.
[43] The substance of vocational rehabilitation lies in the planned process of rehabilitation. This is a case in which the appellant expressed willingness to work and was reported to have been enthusiastic on the days in which she attended work trials. Throughout the process she said that she was limited by pain flaring up on almost every occasion after she had been working. Because of that, she did not ask for any specific rehabilitation intervention except for computer training. She did not make any real contribution to her rehabilitation and she maintained that was because her pain condition prevented her from working. That explains why the focus of the IRPs was upon pain management and work trials. Whether or not the IRPs completely recorded past events and outcomes has little relevance.
[44] There were conflicting views about whether Mrs Millar engaged appropriately with a pain management programme, but there is no opinion to the effect that she wilfully obstructed or absented herself from the process. Pain management is a central feature of rehabilitation in this case because it is the sole reason for the appellant failing to complete work trials and virtually the sole reason for her objection to the vocational independence medical assessment. The appellant claims that rehabilitation was inadequate. The respondent replies that vocational rehabilitation was complete as far as it could be taken without further assistance from the appellant, therefore ACC was entitled to proceed to assessing vocational independence.
Further initial assessments
qualifications and experience had not changed from one initial occupational assessment to the next?
according to the Oxford Dictionary means "of existing, or occurring at the beginning". A further Initial Medical Assessment was not appropriate. ACC must not shop around for a further opinion.
argued that the competence of one of the assessors can be called into question.
does not have the qualifications and experience for some of the jobs (e.g. Human Resources Clerk). Again, arguably, computer skills are necessary for all ten jobs.
16. The first IMA did not recognise cognitive or memory problems.
[45] There is little to be said about these submissions. The Court has not
found difficulty in the past with successive initial assessments
after a lapse
of time. There are points in the process where errors can be picked up and
corrected.
Vocational Independence Occupational Assessment
exercise of discretion after all rehabilitation has been completed: see Martin (232/05). However, the recommended and accepted graduated return to work has not been carried out. Therefore, it follows that the decision to proceed was premature and the decision is flawed.
assistant in an outlet where the products are light such as clothing or fashion related products. In her report, with reference to 52111 Sales Assistant, she stated the appellant had previous retail and customer service experience and noted "Claimant comments N/A". The Work Type Details Sheet "521 / /.. Sales Assistant: in an outlet where the products are light such as a clothing or fashion related products". That was not discussed with the appellant.
a specific type of job rather than a generic job of Sales Assistant. The assessor has added without justification "in an outlet where the products are light such as clothing or fashion related products". That is submitted to be a fatal flaw.
a realistic manner, specific requirements against known background of work experience and education against marketability of prospective employer; there must be an objective measuring rod against which opinion can be measured: see Wyatt (355/05).
21. The appellant is not suited for the sales assistant job because the work
involved with the receipt of stock in a dress shop is little different from that in a stationery shop where the appellant failed to complete a work trial and clearly had problems. The appellant would have to decline to carry out some job tasks, and that would render her unsuitable.
appropriate work type options.
assessment for work in which the claimant had been previously employed.
[46] There is no evidence that the light products sales assistant job was not discussed with the appellant. The "N/A" written against claimant comments is not evidence that it was not discussed. A subdivision of the general sales assistant job has been permitted in other appeal cases and the argument is addressed later in this judgment. The respondent submits that the job of Sales Assistant may legitimately be divided into sub-classifications within the scope of the occupational assessors area of expertise.
[47] The submissions touch on a number of matters that are within the scope of the occupational assessor's area of expertise. The assessor's opinion cannot realistically be challenged without reference to a conflicting report by a comparably qualified expert, or some other body of evidence. The question of the appellant's personality type can be assumed to have been considered along with other aspects of suitability unless there is evidence to the contrary. The suggestion of an unsuitable personality type is too vague. Whether the appellant was assessed for pre-injury capacity is discussed later in this judgment.
Vocational Independence Medical Assessment
been found to be physically unsustainable by a work trial.
26. The Work Detail Sheet refers to the requirement to have a good level of
health and fitness. It may well be that Doctor Seemannn has overlooked this as he indicates in his report that this is not the case when he refers to the appellant's left knee problems and walking with a slight limp.
requirement simply to get to and from the workplace.
Assistant sub type that according to the records and the Work Details sheet is the same as when she suffered her injury.
compare with the physical requirements of the two he identifies as sustainable.
movements intermittent" that is to say he did not enquire into the intermittent nature of the work requirement and specifically assess the appellant's capacity.
causes any impairment of concentration or cognitive impairment.
33. A copy of the IRP was not given to the Medical Assessor.
[48] The medical assessor should be competent to provide a reliable opinion of the medical, physical and mental aspects of suitability for work recommended in the occupational assessment. The fact that the appellant did not complete the teacher aide work trial does not discredit the medical assessor's view that she was nevertheless fit to work as a teacher aide. As it happens, the teacher aide position was later abandoned because there is no full time work in that particular occupation. The appellant raises it here to indicate general shortcomings in the medical assessment. It is also alleged that Dr Seemann did not consider the work trials, but it is clear enough from his report that he noted the outcomes of work trials and discussed the subject with the appellant.
[49] As to the alleged omission of physical limitations, the report indicates that Dr Seemann examined the appellant's elbow in terms of physical limitations and found a full range of motion with normal finger movements. He noted mild swelling of the lateral aspect of the left ankle, full range of motion at the left knee and no effusion present, ligaments all stable. The knee injury may have caused difficulty with standing, but there is no evidence to that effect. A lack of capacity caused by a non- covered condition does not automatically affect a vocational independence assessment. The circumstances need to be carefully examined. But there is no evidence or argument in this case to enable findings.
[50] Dr Seemann noted that there were significant ongoing pain problems. There is no medical evidence to provide another reasonably objective opinion that the appellant's pain is disabling. That is a fundamental problem with this appeal. It is obvious that the respondent does not accept the appellant's subjective view of the effect of pain on her ability to work. There are a number of comments in the material that report Mrs Millar's own view of the disabling effect of her chronic pain condition and other comments that indicate various levels of acceptance of the effect of pain on her ability to work. In these cases there is a positive onus on an appellant to point to reasonably cogent evidence demonstrating a flaw in the assessment: see Ramsay v ACC (High Court, Dunedin AP 412/14/02, 12 December 2002, Hansen J). The Court is not permitted to draw its own conclusions, unassisted by expert opinion, concerning the effect of chronic pain and use of pain medication.
[51] That the 1RP may not have been provided to the medical assessor is not a "fatal flaw". Mr Sumner submitted that the IRP was provided to the occupational assessor and the medical assessor had all the information that he required when he read the occupational assessment. In this area there needs to be more a more specific argument concerning the lack of information that undermined the medical assessment. It is possible that Dr Seemann did not have all the material needed for a full appreciation of the chronic pain problems exerienced by the appellant. It is possible that he omitted to consider a job task that the appellant could not perform. But a challenge to the assessment requires more than just a possibility. Mr Young- Gough submitted that overall poor management of the vocational rehabilitation and the vocational independence assessments was so far below a reasonable standard that the assessments should be rejected. The submission is worthy of consideration, but it is not backed up by objective evidence that something essential was probably overlooked. In these cases an independent report is almost always the deciding factor in allowing an appeal.
[52] Capacity for driving to and from work is not part of a vocational independence assessment. The assessment relates only to physical ability to perform the work tasks. Claimants who live far from a workplace are treated similarly to those who live near to a workplace, because distance is not an accident related consideration. I agree that it seems only fair that an accident related disability that prevents a claimant from getting to a workplace should be taken into account. In the appellant's case there is a combination of distance to travel and means of transport. If she lived in an urban centre she could get to some workplaces without having to drive, or by driving a short distance that she would be able to tolerate. In this appeal I find that there is not enough evidence to displace the usual rule that the medical assessment concerns only the work tasks.
ACC decision
appellant had no opportunity to challenge the veracity of the assessment.
before the decision was made, which precluded the appellant from voicing comments and concerns.
Seemann to modify his assessment report.
changed his report when approached by the respondent. The appellant had no idea what was going on behind her back.
38. There is a new Work Type Detail Sheet for 52111 Sales Assistant (Clothing)
that shows what other names the particular job may be known as, thereby
confirming that the job is the same as that in which the appellant was employed before her incapacity.
[53] The evidence does not suggest that ACC did not consult. There was a meeting on 19 April 2006 before the decision was issued. There is no evidence about the content of the meeting, but it must have been some form of consultation. Mr Young-Gough said that ACC then acted unexpectedly by issuing its decision. In a further submission he said that he and the appellant were "unaware of matters that had been carried out behind her back and that there were in fact two reports". They were also unaware that there were two or more job sheets for the job of Sales Assistant. As to the first point, the correspondence shows that Mr Young-Gough had enquired about the delay in sending the VIMA to the appellant and the case manager explained what had happened by fax on 4 April 2006. Mr Young-Gough must have been aware of that by the meeting on 19 April.
[54] There are troubling aspects about this passage of events, but the Court has no evidence on which to decide whether there was a material irregularity. Under cl 29 of Schedule 1 the Corporation must provide a copy of the medical assessment report to the claimant. There is no statutory requirement for the Corporation to consult after the assessment reports have been obtained. Mr Young-Gough raised a natural justice argument that is taken up separately later in this judgment. The material before the Court shows that the case manager questioned Dr Seemann's report as being ambiguous or incomplete. She asked him to clearly indicate whether the appellant would be able to sustain the job on the Job Details Sheet. She then provided the modified report to the appellant and met the appellant to discuss it on 19 April 2006 before the decision was issued. There is nothing in those events that raises a serious question about the integrity of the assessment. Mr Young-Gough submitted that a new Job Details Sheet was introduced and that it was not discussed with the appellant. That is considered later in this judgment.
Review
39. The Reviewer
referred to evidence of the Corporation file that was not
disclosed to the appellant.
wholly-owned subsidiary Dispute Resolution Services Limited (DRSL) arranges most reviews and the reviewers employed by them have consistently failed to carry out reviews pursuant to the legislative requirements; including that for the appellant in the present case.
statutory imperatives in sections 140 and 141 by conducting a formal review hearing pursuant to s141 without first observing the imperatives in s140. If the informal investigative approach had been adopted many of the procedural and other issues raised such as disclosure could have been resolved.
42. The case manager failed to appear at the review hearing. Her presence was
required to examine issues of credibility.
[55] The appellant alleges a breach of the audi alteram partem rule, in that the Reviewer considered evidence not available to the appellant. The argument would need to proceed from an evidential basis, against which the respondent would be obliged to provide an explanation that the Court could examine. The focus would be on the nature of the Reviewer's misconduct, its prejudice to the claimant, and the extent to which the error can be remedied on appeal. The submission is not fully developed and the Court cannot decide the matter on the basis of an assertion that the Reviewer considered material not disclosed to the appellant. The submission is also a non-disclosure argument, and the same considerations apply. The appellant needs to point to some description of documents that the respondent should have but has not disclosed.
[56] The argument that the Reviewer is not independent has failed in other cases. The Review process is set up by statute. Appeals to this Court are by way of rehearing so that errors by the Reviewer can be remedied. The appellant brings no evidence of lack of independence of the Reviewer. From other cases, the Court understands that DRSL is a wholly owned subsidiary of the Corporation, with a separate management structure, having purposes of providing alternative dispute
resolution services and also engaging reviewers who are required by law to act independently.
[57] Section 140 of the Act sets out obligations of the Reviewer including to adopt an investigative approach. Section 141 governs aspects of the review hearing. There is nothing in these two sections to suggest that there are to be separate or sequential processes. The Reviewer may conduct the review in any manner he or she thinks fit. There may be cases in which an investigation is desirable and others where it is logical to proceed to a hearing. Mr Young-Gough's written submissions made reference to various other appeals in which the question of ACC Review procedure has been questioned, including a pending appeal to the High Court in Willson v ACC, (CIV 2005-485-1974), but that did not shed light on the argument in this appeal.
[58] If there are questions requiring the presence of the case manager at a Review, the Corporation should make the case manager available at the request of the claimant. If it appears during the review that the case manager should be available, the Reviewer should adjourn the hearing for the case manager to be present. The transcript shows that Mr Young-Gough raised the question but moved on without making any request for adjournment for the case manager to be examined. Mr Hack for the Corporation submitted to the Reviewer that the questions on review did not put the case manager's credibility in issue because her function was to manage the stages prescribed by the Act. That appears to be correct. Finally, no application was made for the case manager to be examined at the appeal hearing.
Respondent's submissions
[59] In his general submissions, Mr Sumner submitted that the vocational independence assessments were conducted in the prescribed way by suitably qualified assessors. The appellant completed extensive rehabilitation, including pain management, physical re-activation, work preparation and training, and work trials. She had extensive specialist medical examination and treatment and all the medical reports advised that pain management was the only recommended treatment. Mr Sumner submitted that the job description for sales assistant light work matched the
appellant's skills and experience, and that the medical assessor found it sustainable for 35 hours or more per week.
[60] Mr Sumner submitted that the appellant has provided no cogent evidence that the VIOA and VIMA are flawed. He submitted that cogent evidence in this case would be at least an opinion from a suitably qualified practitioner to contradict the assessor's own opinion. In reply to that, Mr Young-Gough submitted that this Appeal does not require a second opinion because the flaws, errors, and omissions are so significant that the decision is unsustainable.
[61] Finally, I will deal in the remaining paragraphs with some of the more important themes in the appellant's case.
Vocational rehabilitation
[62] I have commented that there were conflicting views about whether the appellant engaged appropriately with pain management programmes. The evidence does not show that she wilfully failed to co-operate with rehabilitation measures. It is fairly clear that work trials or graduated return to work were ultimately impractical without first addressing pain management. The Corporation could do nothing further for the appellant's pain management without her assistance. It had provided what it was liable to provide under the Act. In this appeal there has been no suggestion on the part of the appellant that the Corporation should have obtained an opinion from a specialist in chronic pain conditions. Clearly such an opinion is needed if the vocational independence medical assessment is to be tested.
[63] The single component of the plan that was really open to challenge was the omission of a programme of graduated return to work beginning with work for say two hours. A 2004 IRP recorded under "Intervention Monitoring" that the medical assessment suggested "graduated return to work, possible work trial with increase in hours". The work trials were unsuccessful and the appellant made little follow up contact when she became absent through pain exacerbation. In my view, looking at the whole of the evidence, the Corporation had taken reasonable steps for a work trial as a graduated return to work. Perhaps the process could have been done differently, by a longer work engagement with shorter hours each day. Under s70 of the Act, "a claimant is responsible for his or her own rehabilitation to the extent practicable having regard to the consequences of his or her personal injury". The Corporation does not have a responsibility to explore every possible avenue of rehabilitation, but must respond reasonably to a claimant's needs. In this case, the appellant did not ask for a modified work trial or graduated work arrangement.
[64] Mr Young-Gough submitted that the Corporation should have pursued a graduated return to work recommended by Dr Seemann in the IMA in 2004. In his letter of 12 September 2005, he put to the Corporation a number of reasons why Mrs Millar should not be required to enter the vocational independence process. He wrote:
"... Doctor Seemann's report only identifies one job, Teacher Aide, as being sustainable — and this proved unsustainable in a work trial. All of the other jobs identified by the Initial Occupational Assessor are either rejected or have conditions placed on them. Furthermore, Doctor Seemann concludes that "Return to work could be accomplished as graduated return to work programme". This has not happened. Indeed, two work trials have shown that full time work is unsustainable.
[65] That was not a request for further rehabilitation. The letter did not point to uncompleted components of the IRP. The appellant's position was that she could not work full time. It was implicit in the full context of the letter, and in other communications, that she did not want to engage in rehabilitation directed at preparation for full time work. In those circumstances I find that the Corporation had discharged its obligations under the IRP. As Judge Cadenhead said in Van Helmond (300/04), the issue of whether vocational rehabilitation has been completed is a matter of fact and the assessment procedure can be undertaken even if rehabilitation has been wholly unsuccessful.
[66] There is inevitably conflict between the Corporation's view that a claimant can achieve full time work, and the claimant's contrary opinion. Sections 86 and 87 of the Act vest the Corporation with the authority to make that decision, taking into account appropriateness, viability and cost-effectiveness. If the claimant cannot return to pre-injury work, the Corporation must consider:
(i) whether it is reasonably practicable to return the claimant to an employment of a different kind with that employer:
(ii) whether it is reasonably practicable to return the claimant to the employment in which the claimant was engaged when the claimant's incapacity commenced, but with a different employer:
(iii) whether it is reasonably practicable to return the claimant to a different employment with a different employer, in which the claimant is able to use his or her experience, education, or training:
(iv) whether it is reasonably practicable to help the claimant use as many of his or her pre-injury skills as possible to obtain employment.
[67] In this case the Corporation evidently considered that it was reasonably
practicable to return the claimant to different employment with a different employer, in which the claimant is able to use her experience, education, or training - subpara (iii). Subparagraph (iv) is probably appropriate as a target for part time work. The question was not argued with specific reference to these sections. The point to be made is that these decisions are made when setting up an IRP and when discussing and negotiating modifications. The claimant then has an opportunity to be heard, and to take a question to review. Once the IRP is finalised and there has been no review, that IRP defines the vocational rehabilitation to be completed. In nearly all cases the claimant could point to other vocational rehabilitation that could have been attempted, but that is rarely able to be argued after completing the interventions in the IRP.
The missing page
[68] Attached to the VIOA report of 16 January 2006 was a job detail sheet for the occupation described as:
"52111 Sales Assistant in an outlet where the products are light such as a clothing or fashion related products"
[69] There were two defects in the sheet, first the claimant's name was typed as "Wendy Millar" and secondly the main occupation was described as "4211 Salespersons and Demonstrators" for which 52111 Sales Assistant was shown as a subgroup. The errors were discovered at the first hearing of this appeal and the hearing was adjourned for further enquiry and submissions. The point was important because the Sales Assistant — Light Duties job category was the only job type for which the appellant had been found medically fit. Dr Seemann based his assessment on the VIOA and attached job details sheet. If he had the wrong sheet he might have used the wrong information in making his medical assessment.
[70] The occupational assessor, Carolyn Silverwood, wrote on 21 March 2007:
"On revisiting these documents I would like to confirm that there are unintentional errors recorded on both the Vocational Independence Assessment: Recommendation (ACC 197) and the Job details sheet (ACC 196) that were not picked up in the editing process. These are as follows:
It must be noted that the work detail sheet for 521] 1 Sales Assistant is in a different format to the others because the work detail sheet on the data base was too general. The template that was used enabled the description to be more specific in relation to the suitable type of retail outlet."
[71] Accompanying this explanation was a copy of the retrieved occupational assessment with a copy of the Job Detail Sheet as originally supplied to the claimant. It was in a different format from the other sheets attached to the assessment and the reason given by Ms Silverwood was credible. Appeal decisions in this jurisdiction have noted in various cases that the job type of salesperson is potentially very wide and it is reasonable for an assessor to specify a sub-group when appropriate. The sub-group in this case appears to be reasonably selected as a work type that is common enough to have its own separate designation.
[72] The retrieved copy and the Job Detail Sheet attached to the original VIOA were each dated 18 January 2006. The original version had an ACC receipt date stamp of 24 January 2006.
[73] But there is also another Job Details Sheet dated 18 January 2006 and bearing the ACC receipt stamp of 24 Jan 2006. Mr Young-Gough submitted that a copy of this document was faxed by ACC to the appellant, as shown by a fax identification line at the top. This version is a photocopy with the name Dianne Millar handwritten instead of the typed version, and it has spiral binder marks down the left side. The "G Silverwood" signature and the ACC date stamp are in exactly the same positions suggesting that one version is a copy of the other, or both are from the same original. Mr Young-Gough had another client who could possibly have been the source of the document because her name was Wendy and the documents in her case had spiral binder markings.
- [74] I hesitate to speculate about what this all means, because there could be quite a number of possible explanations. The most obvious one is that the assessor used a modified Job Details Sheet for the Wendy assessment and copied it for use in the present appellant's assessment. The assessor may have first written the name Dianne Millar and later typed it in. The source sheet may have been unmarked, or it may have been filled in for the Wendy assessment. There is nothing to suggest that any other Job Details were used for the final assessments, either for the occupational assessment or for the medical assessment.
- [75] Ms Silverwood's explanation seemed to cover the matter adequately, but Mr Young-Gough submitted at the resumed hearing that it was "unsafe to rely on the documentation, and in particular the doubts surrounding the faxed document". He submitted that the Job Details Sheet supposedly attached to the occupational assessment was not the same document faxed to the appellant and that no explanation was given by the respondent about the handwritten change. He submitted that it is not a minor matter because the handwritten change of name is not the only difference, the other difference being the spiral binding marks.
[76] I accept that the spiral binding question was not further investigated. A further bundle of documents shows that counsel for the respondent eventually declined to reply to Mr Young-Gough's correspondence on the ground that the enquiries were largely irrelevant. Mr Young-Gough protested that the question of relevance was one for the Court to decide. That was where the matter lay by the time of the resumed hearing.
[77] Mr Young-Gough submitted that if the occupational assessor changed the codes on the Job Details sheet because of her error, it must follow that the correct document cannot possibly have been provided to the medical assessor or the appellant or for that matter discussed with the appellant.
- [78] Where there is an area of confusion about the documents and the use of them in the course of assessment, it is fair to say that an evidential burden rests on the respondent to provide evidence that the assessments were correctly done. In a number of areas Mr Young-Gough has submitted that the documentary errors are fatal because they leave uncertainty. In my view there does not have to be certainty, but the Court has to be satisfied to a level commensurate with the gravity of the respondent's decision as it affects the appellant. I can find nothing in all this that suggests a substantive error. The wrong name and the wrong numerical reference are errors of form rather than substance. The unexplained binding marks do not suggest an inference that the assessments were based on contradictory material. All three versions are identical in substance.
Generic argument
[79] Mr Sumner submitted that the work type sales assistant "in an outlet where the products are light such as clothing or fashion related products" is sufficiently generic to stand on its own as an employment option. He submitted also that the position as described in the work type detail sheet is suitable and well within the appellant's physical capabilities. Mr Sumner referred to Bell (179/05), in which Judge Beattie decided that the generic scope of "sales assistant" would be so wide that it would be unreasonable to identify any person who had an aptitude for sales as being capable of selling every category of goods or services that was capable of being sold. In Shailer (234/06) I found it probable that the industries in which sales assistants are employed are varied and widespread so that a generic category for light duties is probably justified and that it is essentially a matter for the occupational assessor to decide in individual cases.
[80] Mr Sumner submitted that the test for vocational independence does not require an appellant to have all the skill requirements for any specific work type, but only that the appellant is "suitable" for the work type. He submitted that the appellant's previous work history and transferable skills make her ideally suited for a position as a sales assistant, through a combination of experience, training, work trials, interest, skills, rehabilitation and knowledge. He submitted that the appellant has not produced evidence on which the Court could state the opinion of the vocational occupational independence assessor was wrong.
[81] I accept that Mr Sumner's submissions cover the point. It has been accepted in other cases that an occupational assessor's classification of a light duties sales assistant job may be accepted as a legitimate generic work category. There is no evidence to the contrary in this appeal.
Incapacity
[82] Mr Young-Gough submitted that the appellant was ultimately assessed for vocational independence in the employment in which she was engaged before she was injured.
[83] Under s103 the Corporation can determine whether the claimant can engage in employment in which she was employed when he or she suffered the personal injury. That is a different exercise from s107 vocational independence. Therefore a claimant cannot be assessed for vocational independence in the employment in which she was employed when he or she suffered the personal injury.
[84] In the Advice of Injury form in 1989, Mrs Millar's occupation was described as "shop assistant". Some IRPs described her as "salesperson, demonstrator". The injury in 1989 was caused by impact against a chiller door at her work. It has been recorded that she was carrying a crate of vegetables, or stacking trays of cabbages. Loss of work amenities associated with her former job have been described as included "lifting, peeling and piling". A letter from Mr Curtis orthopaedic surgeon in September 1992 stated that she was working in a supermarket as a checkout operator/supervisor. Other medical reports recorded that she was working in the produce department of a supermarket. There are other references, but none of them suggest that she was doing the type of work for which Dr Seemann assessed her as vocationally independent.
[85] Mr Young-Gough followed up the Job Details sheet that was described by Ms Silverwood as too general. A sheet was produced with the description:
"52111 Sales Assistant (Clothing)
Description:
Sells clothing and related products in a retail or warehouse establishment where physical movement of the product falls within a light physical exertion demand level.
Specialisations:
May also be known as: Retail salesperson, wholesale salesperson, shop assistant. Any other specific retail or wholesale sales assistant or worker role."
[86] Mr Young-Gough submitted that "any other worker" extended the scope to cover pre-injury employment. I do not accept that submission. The argument cannot realistically be advanced on a semantic basis, but it must have regard to the real work that Mrs Millar was doing before her injury and for which she lost her capacity to continue working. The question is whether the appellant's pre-injury work was "Sales Assistant in an outlet where the products are light such as a clothing or fashion related products".
[87] At the Review hearing Mrs Millar did not give evidence of her pre-injury tasks. After examining the transcript I cannot see that the point was raised, but Mr Young-Gough did have a question about whether the transcript was complete. Perhaps the point was raised. In any case the search is for evidence of Mrs Millar's pre-injury tasks. The documents in this case are vague about the pre-injury employment. One would search for a key document, or a recorded discussion with an assessor concerning pre-injury work tasks, or some correspondence raising the point. Ultimately it was open to the appellant to provide evidence of her pre-injury tasks.
[88] Mr Sumner submitted that the line between generic and sub generic groups has to be drawn when considering whether the employment for vocational independence (s107) is the same as the pre-injury employment (s103). In other words, if the claimant was a sales assistant at the time of injury, that does not mean that she cannot be found vocationally independent in any sales assistant category. In any case, there is no evidence that the appellant's pre-injury job was that of a sales assistant.
- [89] I find that there is no clear evidence to identify the appellant's type of pre-
injury employment. The available evidence suggests that it was different from the job in which she is assessed as vocationally independent. The appellant has not raised an evidential foundation to indicate that she has been assessed for the same category of employment.
The medical assessment
[90] It was submitted for the appellant that the medical assessment was deficient in a number of ways, but most importantly that Dr Seemann could not have discussed the correct job specifications with the claimant, and secondly that the respondent interfered by requesting a modified assessment. The first medical assessment stated:
"52111 Sales Assistant
Mrs Millar commented that she agreed with my assessment.
I felt that she would not be able to sustain retail work in which repetitive use of the forearms was required such as within a supermarket and where heavier goods had to be carried or placed. I think however that she would be able to sustain this occupation in an outlet where the products are light such as clothing or fashion related products. Only with this Proviso is this occupation sustainable."
[91] The second medical assessment stated: "52111 Sales Assistant
Mrs Millar commented that she would have difficulty in general terms with retail work. This is because in many circumstances she would have to repeatedly handle goods and this will increase pain.
I agree with Mrs Millar's comment. However the job detail sheet refers to a
very specific situation, i.e. a retail outlet in clothing
or fashion related
products. In my opinion in this particular circumstance this occupation is
sustainable."
[92] The medical assessment referred to a Job Details sheet but
the sheet was not attached to the assessment. The first version of
the
assessment used a description
almost identical with the second version which
recited the specific work description following the modified 52111 sheet
attached to
the occupational assessment.
[93] Mr Young-Gough has quite correctly submitted that it is uncertain what sheet Dr Seemaml had. The uncertainty is caused by the Wendy sheet and the spiral bound sheet. Mr Young-Gough also pointed to another sheet, the one that was described by Ms Silverwood as "too general" which could have been "52111 Sales Assistant (Clothing)" specifying "clothing and related products in a retail or warehouse establishment where physical movement of the product falls within a light physical exertion demand level". But there is no evidence at all that Dr Seemann might have had the "too general" sheet. He must have had one of the other sheets, and there is no difference between them so far as the work details are concerned. It is entirely speculative to consider that he might have had some other sheet entirely.
[94] It is clear that Dr Seemann did discuss with Mrs Millar the extent of retail work tasks she could manage. In the first version of the medical assessment he reported that she agreed with his assessment that she would not be able to sustain repetitive forearm use, but that she would be able to sustain the occupation where the products are light such as clothing or fashion related products. In the second assessment he recorded her opinion that the first kind of occupation would be difficult and he again gave his own opinion that the clothing or fashion occupation was sustainable. The only real difference is between the suggestion that the appellant agreed with both comments in the first version, but the second version only records her agreement that she could not do the heavier work. Mr Young-Gough submitted that she could not have made the comments recorded in both assessments and one must be wrong. In my view, Dr Seemann's description of the comments was not so different as to be inconsistent. There is no real inconsistency.
[95] The second submission under this head is that Dr Seemann was fUnctus officio. No argument has been advanced in support of the proposition that an assessor has discharged his duties on signing off an assessment and cannot revisit it in order to correct an error. In the absence of supporting argument I reject the submission.
[96] A third basis is that the appellant did not receive the medical assessment. It
is clear enough that she did not receive the first assessment because the respondent requested the assessor to modify it in order to conform with the occupational assessment job details. Failing to send the first assessment to the claimant is not an obviously disqualifying feature and in the absence of argument I reject the submission.
The natural justice argument
[97] Mr Young-Gough argued that the Corporation's vocational independence decision was contrary to principles of natural justice because the appellant did not have a reasonable opportunity to be heard. He submitted that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power.
[98] In the course of the assessments the claimant has an opportunity to be heard by presenting his views to the two assessors. Those views are incorporated in the assessments. The Corporation does not usually make any decision other than to accept the assessments. Under s107(2) "The Corporation determines a claimant's vocational independence by requiring the claimant to participate in an assessment", so the determination does not involve another independent decision by the Corporation. The Corporation could not properly reject assessments unless there is a flaw that renders them incomplete or wrong. One answer to the natural justice argument is that post-assessment representations could only be directed to an assessment flaw. The review process itself provides an opportunity to address an assessment flaw and the claimant has not been deprived of a necessary opportunity to be heard between the assessment and "determination" stages. In this case the requirements of natural justice were fully met by consultation with the assessors.
Decision
[99] I have carefully examined the appellant's voluminous submissions and the accompanying documents in order to be sure that there is not some area in which the assessments failed to correctly address a point of substance. I have not been able to
find any point upon which either the occupational assessment or the medical assessment addressed the wrong job type or some other inappropriate consideration.
[100] Mr Sumner said that the Corporation does not always support a vocational independence assessment that rests on only one job type. That is sensible, and I think that the Court should give very careful scrutiny to such an assessment where the Corporation does rely on it.
[101] Much of the argument has been directed to alleged inadequate rehabilitation. It has to be remembered that claimants have a positive obligation to participate in rehabilitation and criticism of the Corporation's handling of vocational rehabilitation will usually have to be balanced with examination of the claimant's participation and the claimant's effort to promote effectively targeted strategies. In this case rehabilitation was unsuccessful, but was completed so far as it could be taken in view of the appellant's contention that she could not work.
[102] The real question is whether the appellant's pain condition prevents her from working. Unfortunately she has not produced any reasonably current specialist opinion to assist the Court on that question, and she has not asked the Corporation to obtain an opinion for her. The Corporation relied on the vocational independence assessment process to provide an answer to that question. The statutory process has produced an answer that is unsatisfactory for the appellant.
[103] For those reasons the appeal is dismissed.
Judge D A Ongley
District Court Judge
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