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  1. This ACC District Court Appeal Judgement was originally published on the accforumorg way back in 2004 by ernie. VAN HELMOND v ACCIDENT COMPENSATION CORPORATION District Court, Wellington (300/2004) 20 September 2004 Judge J Cadenhead C Millsteed, for Appellant S Mechen, for Respondent RESERVED JUDGMENT OF JUDGE J. CADENHEAD The Issue [1]The issue in this case is whether or not the appellant should have been determined to have a work capacity. The Background of Facts [2]I have substantially adopted the background of facts provided by the respondent, as in my opinion it accurately sets out the relevant facts applicable to this appeal. [3]The issue is the decision by Catalyst Injury Management Limited, dated 12 July 2002, suspending the appellant�s ongoing entitlements of weekly compensation as the work rehabilitation process indicated that he had a capacity to work for 35 hours or more per week in the job types identified. [4]The appellant had an initial accident on 31 July 1979 to his back while lifting heavy carpet. He had a subsequent injury to his back on 3 August 1992, of a lower back strain while at work. There were also three other injuries � they were as follows; a knee injury on 16 August 1992, a shoulder injury on 29 June 1984 and an abdomen pelvis injury on 22 January 1986. These claims are closed claims along with the 1979 claim. [5]The back injury on 3 August 1992 was a new claim and not seen as an exacerbation of the injury in 1979. [6]The appellant was in England during the 80�s and returned to New Zealand in the early 90�s. The appellant had been working at Stockman General Contractors from 13 May 1992 until 3 August 1992 when he suffered the back injury while lifting a rock at work. [7]Following the injury in 1992 the appellant was seen by00 Mr Twaddle, Orthopaedic Surgeon and he reported on 5 January 1993. He reported severe Left sided L5/S1 disc prolapse. He requested a CT scan to confirm the disc prolapse and if confirmed would look at surgery. CT scans of 15 January 1993 reported a probable acute disc prolapse at the L5/S1 level, which was compressing on the left S1 nerve root. The CT also reported degenerative changes at the L4/5 level. The symptoms settled and surgery was not undertaken. [8]The appellant returned to Stockman General Contractors on 21 June 1993 and continued working until he was incapacitated on 22 September 1994. The appellant returned to part-time work having a contract with Enerco Gas. This commenced on or about August 1996 and continued through to 1 June 1997 when the appellant again became incapacitated due to the back injury. [9]The appellant continued to see Mr Howie through 1996 to 1998 during this time CT scans were taken as well as an MRI on 18 March 1996 and a final CT scan 5 December 1997. Mr Howie reviewed progress on 9 February 1998 following the recent CT scan he wrote:- "I reviewed your patient today following his recent CT scan. This now shows that the left L5/S1 disc protrusion noted previously on MRI scan is calcified associated with some further degeneration within the disc. In view of this, I would be doubtful about the benefit of discectomy and/or decompression alone, yet he is not really a candidate for more extensive procedures. I discussed this with him at length. He is keen to pursue other options and would consider retraining. I will ask the ACC to consider this. He has been discharged from my care but I would be happy to review him should him symptoms change significantly.� [10]The appellant continued to be monitored by his GP who cleared him for ten hours a week work on 17 February 1998. A new Individual Rehabilitation Plan (�IRP�) was drawn up in April 1998 with specific interventions to assist medically and also with vocational rehabilitation options. [11]Part of this was a referral to Careerworks Ltd, which was made on 7 May 1998. Of note to them was that the appellant was interested in computers. There was also work at this time with the appellant regarding the web-site that he had started. The appellant was referred to Alistair Emerson, in 1998 who reported to ACC on the development of the web-site. This continued into the year 1999 where the appellant was referred to Mr Graeme MacKay of MacKay Services who continued to work with the appellant once again on the web-site development. The appellant was asked to produce a business plan to ACC to assess the viability of the self-employment option. This plan was never completed. [12]A further IRP was drawn up in 1999. Part of this plan was a referral to Dr Dryson, Occupational Physician, who the appellant saw on 12 November 1999. Dr Dryson advised that there were no further medical interventions available. He advised the appellant would be able to undertake work of a predominantly sedentary nature with opportunity to change posture frequently and to alternate between sitting and standing. He noted that the appellant had discussed learning computer work and said this maybe a possible option for future employment. [13]Occupational Therapy Services met with the appellant and completed a report on 1 December 1999, where an initial two hours of home help was recommended. [14]MacKay Services reported on 17 February 2000 regarding their input to the appellant�s web-site development. They noted the various requirements to improve the site and get it up and running. There is reference to the formal writing of the business plan which was still on hold, the appellant being involved in other activities at the time which was delaying the writing of the plan. [15]The file was transferred to Aon Risk Services on 19 April 2000. There was a meeting on 13 September 2000, which specifically discussed the assistance by ACC for the appellant�s web-site. The Case Manager advised that there would have to be an assessment of the viability of the business and that a full business plan would need to be presented. At this point the appellant was unwilling to consider providing a full business plan. [16]The final IRP was commenced 18 June 2001. This was signed by the appellant in October 2001 after full discussion and input into the development of the plan. The specific interventions outlined were �Occupational Physical Assessment �Back friend �Pain Management �Water activities �Vocational Assessment plus Curriculum Vitae preparation �Home Assessment �Re-assessment by Dr Tony Chew [17]The appellant was referred for pain management and Jenny Dashwood wrote a final report regarding the pain management on 19 January 2002. [18]Vocational Assessment and Curriculum Vitae preparation was completed by Jill Shepherd, Career Services, with a report on 31 August 2001. A home visit as well as a home help assessment was completed and a report forwarded on 2 November 2001. [19]The appellant was given a back friend but returned this at the meeting of 10 October 2001. The appellant was seen by Dr Chris Walls, Occupational Specialist Physician, on 18 June 2001. Dr Walls under the head of Prognosis wrote:- �The prognosis medically is that his disc protrusion will not resolve and it will continue to provide some nerve root irritation� I think he would be suitable in the long-term for a number of jobs which would allow varied physical posture, avoid heavy physical activity and may require some computer input. For example, watch keeper at security gates, car park attendants would be suitable activities to consider.� [20]Under the head of Recommendations for Return to Work he wrote to increase the appellant�s activities such as swimming. He also referred to nerve conduction studies as the appellant had some problems with his hands. [21]The appellant does not have a claim for a hand injury. This was discussed on more than one occasion with the appellant and the matter referred to his General Practitioner for follow up. [22]On 5 December 2001, the AUT Rehabilitation Centre discharged the appellant, and a report was forwarded by Eva Tollemache, Occupational Therapist. It noted the replacement of a cubro stool that had been requested for the appellant following the home site visit. [23]With all rehabilitation completed by 30 December 2001, the usual team review and quality check was carried out. [24]On 1 February 2002 a conference call was convened between the appellant, his solicitor, Nathan Ormsby and the Case Manager�s, to go through the work rehabilitation assessment process. Letters were also forwarded on 1 February 2002 advising the appellant in writing of the work rehabilitation process, inclusive of the claimant questionnaire, claimant quality check form and the fact sheet regarding the Work Rehabilitation Process (�WRAP�). The appellant sign off of the process was completed on 6 February 2002 along with the claimant questionnaire. [25]The General Practitioner�s questionnaire was forwarded and received on 12 February 2002. Under the head of �Any outstanding treatment issues relating to this injury or any other injuries�, Dr Campbell, the General Practitioner wrote �No�. Dr Campbell also considered that the appellant had a capacity to work in other types of employment than that of his pre-injury employment. [26]The appellant was referred to Kelly Chal Career Services and an Occupational Assessment, as per the WRAP process, was completed on 25 February 2002 where nine job options were identified. [27]The appellant was initially seen by Dr Chew, Occupational Physician, who completed the medical assessment of the WRAP process and he identified three job options. Following this, Dr Chew was contacted by Dr Rob Percival, the Branch Medical Advisor, and an addendum to the initial report was received from Dr Chew on 22 April 2002. This addendum recommended psychological assessment. This however had not been discussed with the appellant and on requesting Dr Chew to speak to the appellant about it, he refused. On this basis neither the assessment nor the follow up recommendations were used as they have not been discussed with the appellant. [28]As a result of the issues surrounding the report of Dr Chew, the appellant was referred for a further medical assessment as part of the WRAP process. This was conducted by Dr Tim Sprott, Occupational Medicine Specialist on 29 May 2002. He completed a report and identified four job options that the appellant had a capacity to work in. [29]Following the assessment, a letter was sent to the appellant on 12 July 2002 advising that his weekly compensation would cease as he had been assessed as having a capacity to work. [30]A review application was forwarded on 22 July 2002. A report from Dr Hancock was received on 18 October 2002 in support of the appellant�s review application. [31]A review hearing was held on 24 October 2002, Mr Dunn, Reviewer, in his decision of 20 November 2002 confirmed the respondent�s decision. Completion of Rehabilitation Plan [32]Over the years there have been a number of rehabilitation plans, the most relevant of those being the last rehabilitation plan, which was signed in October 2001. The interventions outlined in the IRP were completed by 30 December 2001 and the appellant was advised in writing, on 1 February 2002, of the work rehabilitation process and also by way of a teleconference on the same date involving the appellant�s lawyer. [33]On 1 February 2002, Jill Shepherd, Career Consultant, wrote to the Case Manager and said that the appellant was very focused on pursuing his own learning on developing his web site, and although he agreed that he did have skills for some areas of work options he did not want to pursue those ideas at the present time. He did not want assistance from a work trial, as he wanted to concentrate on developing his web site. This information confirms an earlier note on the file, agreed bundle 16, that the appellant refused to go on any courses and that his internet site was ready to go. Occupational Assessment [34]Kelly Chal of Career Services completed the Occupational Assessment on 25 February 2002. Ms Chal is an approved assessor pursuant to s.95 of the 1998 Act. Ms Chal noted that the appellant had been in the workforce for 14� years. The details of the appellant�s previous employment were noted in the assessment. It was also noted in s.2, that the appellant had partially completed his private pilots licence. [35]Since leaving school the appellant had not been involved in any formal training or education however had had on-the-job training. Since ceasing work in 1997, the appellant had been intensively involved in web-site design and development. The appellant through self- development has gained considerable skills in these areas as part of a desire to be self-employed in this type of business. [36]As a result of the appellant�s work experience education and training, he had considerable transferable skills. These were listed in section 3 of the report. Beside each of the job options identified, the assessor noted the appellant�s transferable skills from his education, training and experience. Nine job options were identified they were:- [a]Web-site Designer Web-site Developer [c]Web-site Administrator [d]Accommodation Manager (Hostels) [e]Caretaker [f]Handy Person [g]General Labourer [h]Retail/Shop Manager Property Manager [37]The assessor suitably matched the appellant to the job options. Each of the job options were discussed with the appellant. The appellant�s comment in discussion was that he preferred to work on his own so that he could take breaks when required. He was very excited about his web design. The appellant mentioned that he would prefer to continue in this field, however was able to transfer his skills to any of the other options. [38]Job Detail Sheets were completed for each of the identified job options. These sheets set out the physical functions and tasks of the job options as well as a job description. [39]It is submitted that the Occupational Assessment complied with the legislative requirements of the 1998 Accident Insurance Act (�the 1998 Act�). Medical Assessment [40]The Medical Assessment relied upon in the decision was completed by Dr Tim Sprott. Dr Sprott is a duly qualified Medical Assessor pursuant to s.98 of the 1998 Act. Dr Sprott is a specialist in occupational medicine. [41]In completing his report of 29 May 2002, Dr Sprott had all relevant medical and vocational documentation forwarded to him including the Occupational Assessment by Ms Chal and the Job Detail Sheets. [42]Dr Sprott completed an examination of the appellant and also recorded the appellant�s injury history and treatment. Dr Sprott took account of the back injury as well as noting the knee and hands as part of the clinical examination. Dr Sprott noted under opinion: �Mr Van Helmond is a 44 � year old man who presents with a long standing history of back pain since 1979 and specifically sciatica since 1983�. Currently the clinical picture is that of chronic low back pain, referred left S1 pain and evidence of modification of pain behaviour with well established psychosocial issues. �. Mr Van Helmond has patellofemoral pain of the right knee but this does not appear to be having a significant impact on his current level of functioning. He also has evidence of bilateral thenar wasting, probably on the basis of bilateral carpal tunnel syndrome.� [43]Dr Sprott recommended nerve conduction studies these could be arranged through his GP. [44]He goes on to write �In assessing his work capacity I have taken into account the symptoms of his chronic back pain and left sciatica and his hand and wrist symptoms.� [45]Dr Sprott then outlined the appellant�s general restrictions as a result of his injury. [46]Dr Sprott opined that the appellant had a capacity to work in four o job options. They were: 1. Web-site Designer � as there is flexibility to get up and move around as required. 2. Web-site Developer � again postures can be flexible and assist management of pain. 3. Web-site Administrator � again because this work allows for a variety of postures and avoids any significant degree of exposures that are restricted above. 4. Property Manager � this role is predominantly indoors, involves some standing and walking and use of cognitive skills. There is some driving, which clearly has exposures to both whole body vibration and sitting, but this driving is of relatively short duration and this is unlikely to cause any harm. [47]Dr Sprott went through each specific job option and identified that the appellant had a capacity to work for 30 to 35 hours or more. Dr Sprott ruled out five of the job options and detailed why those job options were not suitable. [48]Dr Sprott discussed the job options with the appellant. The appellant�s feedback was: �1. Web-site Designer, Developer and Administrator � He thought that such work would be in his capability if he was self-employed and he could structure his work hours around his pain. He thought that a highly structured work time would lead to work unreliability due to absence patterns. Otherwise he stated he enjoys such work indeed is interested in developing a web-site. Property Manager � He feels that his concerns are about his administrative skills and book keeping standards are not up to scratch and he also has concerns about driving. In more general terms he stated that self-employment was preferred because of flexibility of hours, he could work around his disturbed sleeping pattern and he felt motivated for this. Psychosocial issues involved upcoming litigation with his ex-landlord and adversarial relationship with ACC/Aon. These take his attention and he stated that at this time he feels unemployable.� The Review Hearing [49]The review decision is dated 20 November 2002. The appellant his counsel were at the review hearing. The reviewer said that the appellant by his x-rays had demonstrated a large calcified left L5/S1 disc prolapse displacing the S1 disc root. A further scan had revealed disc degenerative disease with a central and left paramedian disc protrusion at L5/S1. The protrusion compressed the S1 nerve root. [50]Formal rehabilitation did not commence until a rehabilitation plan was signed in 1995. In August 1996, the appellant borrowed funds to set up a business installing gas lines in conjunction with Enerco. The respondent asked for an assessment of that proposal from Mackay Services. A follow-up report in June 1997 revealed that the appellant had experienced difficulties with incomplete bookkeeping and his physical restrictions. The business was in serious difficulty, and a review was required to ascertain whether the appellant could continue to trade. [51]The appellant signed a further rehabilitation programme in August 1998 to obtain suitable employment within his capabilities. The plan was updated in 1999. [52]Career Works Ltd assessed the appellant�s interest in computers. The subsequent report revealed that the appellant�s work history related to heavy labouring and contracting. He was now unable to pursue the contracting option. The appellant�s interests lay in computer design, but his skills were not formalised to enable employment in that area. A course in graphic and visual design was recommended through the Auckland Institute of Technology. [53]The appellant put forward his proposal for an Electronic Community Information publication utilising the Internet. A report from Mr A. Emerson concluded that he was self-taught in website design and implementation, but demonstrated a good grasp of the required techniques. [54]File notes revealed that the appellant was unwilling to attend any courses. His desire was to become self employed in the computer field. [55]According to Dr Dryson the appellant�s physical condition was unlikely to change significantly, and his restrictions included bending, twisting, lifting, prolonged standing, prolonged sitting and vibration. [56]Dr Dryson thought that computer work would be a possible option, and that the appellant was capable of light sedentary work for 20 hours per week. [57]A further opinion from Mackay Services indicated that the previous self employed venture with Enerco Gas left the appellant�s former company with significant debts. [58]Mr Mackay observed that the appellant was currently focused on those matters, so it was difficult for him to concentrate on his current self employment proposal. Mr Mackay outlined the required skills and the advantage of the appellant re-focusing his work options. [59]In April 2000, the appellant had 23 internet sites, and worked on the computer for eighteen hours a day. [60]The appellant was unwilling to consider a full business plan. The appellant said that if he was left alone for the next six months he could become financially independent. [61]On 7 September 2001, the respondent advised the appellant that his rehabilitation plan had been drawn up, and he was asked to sign and return the plan. [62]He was referred for a vocational assessment with Ms Jill Shepherd, who noted that while he discussed various jobs, he was totally focused on his website development as the vehicle for his future independence. [63]The reviewer then described progress, including the fact that the appellant underwent an occupational assessment with Ms Kelly Chal, who nominated occupations that the appellant could work at. Ms Chal suggested that the appellant had the necessary skills for his internet project, and she considered that further vocational rehabilitation was not required. [64]The appellant was then referred to Dr Tony Chew, occupational medicine specialist. He advised that the appellant was fit to work for 30 hours per week as a website designer, developer or administrator. [65]Dr Chew reported that the appellant agreed with the assessment in principle, but commented that he may have difficulty increasing his hours working on the web for 30 hours per week. [66]The appellant then dealt with the difficulties that surrounded Dr Chew�s report. The appellant had objected to Dr Percival contacting Dr Chew. [67]The appellant was then referred to Dr Tim Sprott for a further work capacity medical assessment, along with a number of background documents and material. [68]Dr Sprott recommended that the appellant was capable of working as a website designer, website developer, website administrator and property developer. The appellant commented that website work would be within his capabilities if he was self employed, as he could structure his hours to work around his pain and disturbed sleeping pattern. He expressed concern over his administrative and bookkeeping skills. [69]The appellant gave evidence. He said in regard to the three website jobs he had been self taught. He had researched his ideas to develop a website business. He knew the basics of website design, but did not have any qualifications or formal training, as he took it upon himself to learn the requirements of website design. He said he was unable to sit or drive for any length of time, and he described himself as an �ideas person� who paid out a significant amount of money to develop the website project. He wanted to engage people to do the actual work. [70]The reviewer noted that the appellant did not have a University degree, or on-the-job training for the occupations of a website designer/developer and administrator. He is self taught with no formal qualifications. [71]Despite that, the reviewer said that had the respondent sought to rely on Dr Chew�s report, then the work capacity decision would be quashed. However, that was not the case. Dr Chew�s report was disregarded, and a subsequent report sought from Dr Sprott. In effect, Dr Sprott identified the same jobs as Dr Chew, with the exception of the property manager role. [72]The reviewer said the essence of the appellant�s submissions was that the occupational assessor had failed to correctly match the jobs to the appellant�s skills, training and education. It was argued that the appellant had not undergone any work trials in website design or property management. The reviewer said that the submission in that respect seemed to overlook the appellant�s current website activity. The reviewer thought that the submission that the appellant could not do the website work was an extraordinary statement given his desire to do that work, and his substantial financial investment. [73]It was conceded, however, that the appellant did not have University training. However, the occupational assessor provided an either/or option to include on-the-job training. The appellant had preferred to develop his own website business for approximately four years. [74]In respect to the role of a property manager, the reviewer noted that that occupation required competence in planning, organisational decision making and communication skills. [75]The reviewer said that on closer examination, the property manager position appeared to be at a higher level than a hostel manager, and that there were several references on file to deficiencies in the appellant�s bookkeeping and administrative skills. His activities appeared to be a central aspect of the property manager�s role. The reviewer said that while running a hostel appeared inconsistent with the demands of becoming a property manager, it appeared that the job may not be suitable. [76]In respect to Dr Hancock�s report, the reviewer said that the report of Dr Hancock appeared to stray outside the area of his expertise, and that his comments were more in keeping with those of an occupational assessor. [77]The reviewer dismissed the application. [78]In forming his decision the reviewer ruled out the position of Property Manager as he found that the appellant had deficiencies in bookkeeping and administrative skills which were a central aspect to the position. The reviewer said: �It appears this job may not be suitable. It does, however, leave the three other job options that have been identified by both the occupational assessor and medical advisor.� [79]The reviewer then confirmed that the appellant had the capacity to work in the other three job options. Legislation [80]Pursuant to s.369 of the Injury Prevention, Rehabilitation, and Compensation Act 2001, if an assessment was commenced under the former Act and not completed before the commencement of the 2001 Act, it may be completed under the former Act and have effect as if it were an assessment of capacity for work under the 2001 Act. The commencement of the process is set out in s.93 of the 1998 Act. The process commenced with notification to the appellant that he or she would be assessed for work capacity. [81]The work rehabilitation assessment process contained in sections 89 to 100 of the 1998 Accident Insurance Act was the applicable process in the appellants case as the assessment process was commenced prior to the introduction of the Injury Prevention, Rehabilitation, and Compensation Act 2001 (�2001 Act�). [82]I set out in full the statutory provisions of the Accident Insurance Act 1998 concerning the procedure provided by the statute, for assessing work capacity: �89Insurer to determine capacity for work (1)The insurer may determine the capacity for work of� (a) An insured who is receiving weekly compensation: (b)An insured who may have an entitlement to weekly compensation: ©An insured who is receiving, or may have an entitlement to receive, weekly compensation under clause 71 of Schedule 1. (2)The insurer determines an insured's capacity for work by requiring the insured to participate in an assessment carried out� (a)In accordance with sections 93 to 100; and (b)At the insurer's expense. (3)The insurer may require the insured to participate in such an assessment at any time that the insurer considers appropriate after the insured has completed any vocational rehabilitation that the insurer was liable to provide under his or her individual rehabilitation plan. (4)The insurer may determine the insured's capacity for work at such reasonable intervals as the insurer considers appropriate. (5) However, the insurer must determine the insured's capacity for work again if� (a)The insurer has previously determined that the insured had a capacity for work, either under� (i)This section; or (ii)Section 51 of the Accident Rehabilitation and Compensation and Insurance Act 1992; and (b)The insurer believes, or should reasonably believe, that the insured's capacity for work may have deteriorated since the previous determination. (6)The insured may give the insurer information to assist the insurer to reach a belief under subsection (5)(b). � 93 Notice to insured in relation to assessment of capacity for work (1)The insurer must give written notice to an insured required by the insurer to participate in an assessment of his or her capacity for work. (2)The notice must� (a)State the purpose, nature, and effect of the assessment; and (b)State that the insured is required to participate in the assessment; and ©State the consequences of not doing so; and (d)State the insured's right to be accompanied by another person during the assessment. 94 Conduct of assessment of capacity for work (1)An assessment of an insured's capacity for work must consist of� (a)An occupational assessment; and (b)A medical assessment. (2)The purpose of an occupational assessment is to identify types of employment that are suitable for the insured because they match the skills that the insured has gained through education, training, or experience. (3)The purpose of a medical assessment is to provide an opinion for the insurer as to whether, having regard to the insured's personal injury, the insured has the capacity to undertake any type of employment identified in the occupational assessment. 95 Occupational Assessor An occupational assessment must be undertaken by an assessor who has the appropriate qualifications and experience to do the assessment required in the particular case. 96 Conduct of occupational assessment An occupational assessor undertaking an occupational assessment must� (a)Take into account any information provided by the insurer and the insured; and (b)Discuss with the insured all the types of employment that the assessor identifies as suitable for the insured; and ©Consider any comments the insured makes to the assessor about those types of employment. 97 Report on occupational assessment (1)The occupational assessor must prepare a report on the occupational assessment specifying� (a) The insured's work experience; and (b)The insured's education, including any incomplete formal qualifications; and ©Any work-related training in which the insured has participated; and (d)All skills that the assessor has identified the insured as having; and (e)All types of employment identified as suitable for the insured; and (f)In relation to each type of employment, the requirements of that type of employment. (2) The occupational assessor must give a copy of the report to the insurer, the insured, and the medical assessor. 98 Medical assessor (1) A medical assessment must be undertaken by a registered medical practitioner who� (a)Holds vocational registration under the Medical Practitioners Act 1995; and (b)Is described in subsection (2) or subsection (3). (2)A person who holds vocational registration in general practice must also� (a)Have an interest, and proven work experience, in disability management in the workplace or in occupational rehabilitation; and (b)Have at least 5 years experience in general practice; and ©Meet at least 1 of the following criteria: (i)Be a fellow of the Royal New Zealand College of General Practitioners or hold an equivalent qualification: (ii)Be undertaking training towards attaining fellowship of the Royal New Zealand College of General Practitioners or an equivalent qualification: (iii)Have undertaken relevant advanced training. (3)A person who holds vocational registration in another branch or sub-branch of medicine must also� (a)Have an interest, and proven work experience, in disability management in the workplace or in occupational rehabilitation; and (b)Be a member of a recognised college. 99 Conduct of medical assessment A medical assessor undertaking a medical assessment must take into account� (a)Any information provided to the assessor by the insurer; and (b)Any individual rehabilitation plan prepared for the insured; and ©Any of the following medical reports provided to the assessor: (i)Medical reports requested by an insurer before the individual rehabilitation plan was prepared: (ii)Medical reports received during the insured's rehabilitation; and (d)The report of the occupational assessor; and (e)The medical assessor's clinical examination of the insured; and (f)Any other information or comments that the insured requests the medical assessor to take into account and that the medical assessor decides are relevant. 100 Report on medical assessment (1)The medical assessor must prepare a report on the medical assessment specifying� (a) Relevant details about the insured, including details of the insured's injury; and (b)Relevant details about the clinical examination of the insured undertaken by the assessor, including the methods used and the assessor's findings from the examination; and ©The results of any additional assessments of the insured's condition; and (d)The assessor's opinion of the insured's capacity for work for each of the types of employment identified in the occupational assessor's report; and (e)Any comments made by the insured to the assessor relating to the insured's injury and capacity for work in the types of employment identified in the occupational assessor's report. (2)The report must also identify any conditions that� (a)Prevent the insured from having a capacity for work; and (b)Are not related to the insured's injury. (3)The medical assessor must give a copy of the report to the insurer and the insured.� Legal Principles [83]The provisions of s.89(3) of the 1998 Act are quite clear. The insurer�s right to require an insured to participate in a work assessment arises only after the insured has completed any vocational rehabilitation that the insurer was liable to provide under his or her individual rehabilitation plan. The issue of whether vocational rehabilitation has been completed is a matter of fact and is arrived at after taking all the relevant facts into consideration. The assessment procedure can be undertaken even if rehabilitation has been wholly unsuccessful. It is the completion of the vocational rehabilitation that the insurer was liable to provide that is important. (Grimstone (246/99, Beattie DCJ)). [84]The capacity to work procedure is a discrete process that is governed by the above statutory provisions. The position of a medical assessor is of importance in this statutory framework and he is required to consider all the essential prerequisites prescribed by the above sections. In Ramsay v Accident Insurance Corporation (High Court, Dunedin; AP 412/14/02; 12 December 2002) after considering that legislation, Hansen J (at paragraphs 50-52) thought that the principles to be extracted from this legislation are: �(i)Section 89 allows the respondent, at its discretion, to have an insured assessed to determine the capacity to work. (ii)Once the respondent determines to exercise that right, then the assessment must be carried out in accordance with the provisions of s.93 to s.100. (iii)Section 98 states that a medical assessment can only be undertaken by a registered medical practitioner who holds vocational registration under the Medical Practitioner�s Act 1995, and is described in ss.(2) and ss.(3) of that section. (iv)Another medical opinion can be placed before the medical assessor and considered in terms of s.99. Indeed, the medical assessor is required to take that opinion into account. (v)Once the respondent determines to require an insured to undergo the process determining capacity to work then from a clear wording of the provision both parties are bound by that process. The scheme of the Act does not envisage a process where the respondent gathers in evidence and reaches a decision by balancing that evidence: that role is given by the legislation to the medical assessor. Parliament has determined the proper way for such persons to consider all relevant matters is in terms of s.99. Parliament has provided for no other method of assessment, and it is certainly not open on the statutory provisions for the work capacity assessment to be disregarded, because the Court, or the respondent, preferred a contrary view of another medical opinion. (vi)There may be situations where the respondent and the Court can go behind the assessment, but they will be quite limited. These cases may occur where the medical assessor was not properly qualified under s.98; had failed to take into account matters that he must take into account under that section; or where the report failed to contain some of the information required to contain under s.100 of the Act. (vii)At the end of the day what is required is evidence on which the Court, or the respondent, could say the opinion reached was wrong, and consequently the insurer�s decision was wrong. (viii)Once the initial onus of establishing the requirements of work capacity procedure has been discharged, it is for the appellant to show that the respondent�s decision that she had capacity for work was wrong.� [85]In addition there is nothing in s.99 of the Act that requires the medical assessor to consider any information, whether medical or not, provided after the medical subsection has been completed. Section 99 provides for the information to be taken into account when completing the assessment. Once the assessment is completed the statutory obligation upon the medical assessor is at an end. If it were otherwise, then it could never be said that the medical assessment was at an end. [86]A medical assessor is required to take into account the information stipulated in section 99(a) to (f), when undertaking the medical assessment. However, it is always open for the claimant to produce further medical evidence to the respondent before the assessment is made. [87]The relevant time is the time of the undertaking of the assessment. Sections 99 and 100 are complementary. After the medical assessment is done a copy of the report must be given to the insured. The medical assessment must identify any comments made by the insured. Clearly, the time for comment is before the assessment is made, not after it. [88]If there is evidence that the claimant�s capacity for work has deteriorated then the respondent is required to again make a capacity for work assessment in the light of the claimant�s current capacity. The wording of the Act is that the respondent �must determine the insured�s capacity for work again�. This would be in the nature of a fresh decision in respect to different periods of time. [89]I cite these principles to show the importance of the integrity of the statutory process in determining a work capacity assessment. There is at least an evidential onus upon the respondent to show that the various prescribed statutory steps have been complied with before being entitled to the benefit of the medical assessment provided by the medical assessor. Once the assessment has been made, the medical assessor is virtually functus officio. [90]In respect to a medical or occupational assessment in the recent decision of Carter (137/04) Hole DCJ held at page 4 of the decision: �It is not the function of this Court, when hearing an appeal, to determine whether or not a particular appellant is suitable for any proposed job option. That is the function of the occupational assessor and medical assessor. Unless there is clear and cogent evidence which indicates that the way either the occupational assessor or medical assessor reached his or her conclusion is flawed, those conclusions must stand.� [91]With respect to the job options that have been identified, the Occupational Assessor is the expert in this area as was recognised in the decision of Connell (161/03). The principle applied in Ramsay is also applied by the Courts to occupational assessments. In Connell the Court held: � [15] In the Ramsay decision his Honour Justice John Hansen, in my view, stated no more than the assessment carried out under the Act by the duly qualified and appointed assessors are to be accepted, and all parties bound by them, unless evidence is presented to the Court on which it could say that the opinion reached was wrong. In his decision his Honour approved the passage in the judgement of this Court in Knight (149/02) wherein the Court stated:- �It is for this reason that I find there is no conflict with the many decisions of this Court which is found and held that where the assessment carried out by the assessor has been carried out in accordance with the terms of the Act then in the absence of cogent evidence to the contrary that assessment must be accepted.� [16]Although his Honour in Ramsay was only called upon to deal with the medical assessment, which was the only assessment, which has been called into question, I find that the status of assessments be they occupational or medical must be considered to be the same. Those assessments are required by the Act to comprise various parts and only duly qualified assessors, that is persons with qualifications as expressed in the Act, are able to provide such assessments. In those circumstances it is entirely reasonable that such assessments for those assessors should be accepted in the absence of clear and cogent evidence that any particular assessment is clearly wrong.� [92]The Court held in Veltmans (141/03) that: �The Court has had no evidence from any suitably qualified occupational assessor which would cast doubt on the assessment carried out by Miss Pearson. The Court does note that the two sources referred to by counsel are simply aids or guides and there is no rule or principle which requires that the types of employment which the occupational assessor identifies pursuant to Section 97 of the Act must be specifically those referred to in any particular data base.� [93]It is not a requirement that rehabilitation is undertaken to up skill an appellant where the appellant already has transferable skills, I refer to the case of Walsh (253/2000). In Walsh at pages 6 and 7 Judge Beattie held: �In this appeal the Appellant has not sought to question the validity or efficacy of the occupational or medical assessments that were carried out, but simply that the Respondent had not carried out any or sufficient vocational rehabilitation in order to equip him with skills necessary for his re-entry into employment. From the facts it is clear that the Respondent did not seek to up skill the Appellant in any way but it did have advice, firstly from the Employment Consultant�s, and subsequently, from the Occupational Assessor that the Appellant did have a wide range of transferable skills. Furthermore, it was established that those transferable skills did match up with suitable alternative job options and I consider that the provisions of Sections 93 to 100 of the 1998 Act are different in emphasis from the gazetted Procedure which operated pursuant to Section 50 of the 1992 Act and which are referred to on page 12 of that document. I find that the provisions of Section 94(2) enabled the assessment procedure to be carried out if it be determined that there are types of employment suitable for an insured because they match skills which that person already has in which have been gained through education, training or experience. I find that a plea for a requirement of retraining or up skilling could only be successful if an occupational assessment did not identify any types of employment that matched an insured's existing skill. That view is given weight when that concept is allied to the provisions of Clause 54 of Schedule 1 which states the purpose of vocational rehabilitation as being to help an insured to (a) maintain employment; or (b) obtain employment; or © regain or acquire a capacity for work. If one then has regard to the hierarchy of considerations and cost effectiveness in Clauses 55 and 56, then in the circumstances of this Appellant I find that he could not contend that he had a right to further vocational rehabilitation before being required to be assessed as to whether he had a capacity for work. In the case of this Appellant, a wide range of transferable skills has been identified. Under the particular provisions of the Act relating to capacity for work, the fact that those skills had not, by the time of the assessment, brought him employment is not a consideration to be taken into account when determining the validity of requiring the Appellant to undergo the assessment.� Submissions of the Appellant [94]In paragraph 72 there was a substantial attack by the appellant concerning the intervention of Dr Robert Percival, and the medical report received from Dr Chew. [95]It was accepted by the review officer that this breached the principles of natural justice, and was accordingly disregarded by him. [96]It is submitted that the appellant has never been an expert in website design, administration or development. The submission was that the reviewer had agreed that the respondent had deficiencies in bookkeeping and administrative skills which were central aspects to the position. The reviewer held that property management was not suitable employment. Without the qualifications in the position of website administration, it was submitted that the appellant would not be an attractive option for employers. [97]He had never been given the chance, it was submitted by the respondent, to retrain to gain qualifications. [98]The submission was that knowing the appellant�s limitations with his back, and due to his limited movement, the best course of action would have been home correspondence. [99]The appellant submitted a review application on 22 July 2002. In his application he wrote:- �ACC�s decision is not correct as I am not fit to undertake the positions identified by the medical assessor for 35 or more hours per week. Nor do I have the requisite experience, education or training to undertake all of these positions. The Corporation has failed to provide me with adequate vocational rehabilitation and the alternative job options identified. I do not believe that the work rehabilitation procedures have been complied with in my case. Nor were my review rights with respect to my IRP Plan explained fully to me." Dr Hancock�s Report [100]A report from Dr Hancock dated 1 October 2002 was submitted in support of the appellant�s argument. Dr Hancock spent some time giving his opinion on the appellant�s occupational experience in the job options identified. He advised that in his opinion the appellant did not have the required skills. Dr Hancock�s area of expertise is in pain management not occupational assessments. It is submitted his comments are outside of his area of expertise and he should have confined his opinion to medical aspects only. [101]I refer to the recent case of Akuhata-Brown (229/2002) which discusses this point. The Court held:- �[14] In the course of his report Dr Wigley has also expressed his opinion on the adequacy or otherwise of the appellant�s vocational rehabilitation. Whilst I accept that Dr Wigley may have an interest in rehabilitation medicine, nevertheless I consider that his expertise must be confined to the medical aspects of any rehabilitative initiatives rather than the occupational aspects.� [102]Dr Hancock�s report does not explain why the appellant could not perform the website occupations. He raises issues such as not being able to sit for long, however does not explain how this would prevent the appellant from having the capacity to work in those positions. [103]Further the restriction on prolonged postures in respect of the back injury were recognised by Dr Sprott. In his assessment he noted in relation to the restrictions ��or working for prolonged periods in static posture.�. In his rationale for identifying the jobs, Dr Sprott advised that there was �variety of postures, postures can be flexible� accordingly addressing the restriction that he had identified. [104]The physical restrictions outlined by Dr Hancock for the position of �Property Manager� including bending and twisting, are not activities outlined in the job detail sheet. The tasks and functions outlined are for the generic job of property manager. [105]Dr Hancock then went on to state �or other physical activity is not a reasonable option for him.� This is too general and not specific to the job tasks. It does not state why the appellant cannot perform the job option. The Medical Assessment of Dr Chew [106]The appellant has raised an issue concerning the reports of Dr Chew dated 2 April 2002 and 22 April 2002. As outlined in the background, Dr Chew completed the medical assessment in respect of the appellant on 2 April 2002. As a result of the report, Dr Percival, the Branch Medical Advisor, rang to discuss the report. Dr Chew outlined a number of medical recommendations, which he outlined in his later report of 22 April 2002 which included of a psychiatric report. These interventions had not been discussed with the appellant. It is a requirement of the Act and natural justice that the report in full is discussed. Dr Chew was asked to meet with the appellant and discuss his report. Dr Chew refused, on that basis the respondent could not use the report in its decision making and as a consequence sought a further report from Dr Sprott. [107]The appellant and his lawyer were made fully aware of the circumstances and that the reports of Dr Chew would not be used in any decision making. The appellant was advised, as was his lawyer, that a further report from Dr Sprott would be sought. [108]The report of Dr Chew was not forwarded to Dr Sprott as it had not been discussed fully with the appellant. [109]The Reviewer accepted that there had not been a procedural flaw in the assessment process by the request of the further report. Indeed he found that had the report of Dr Chew been relied upon the decision of the respondent would have been quashed. [110]Dr Sprott and Dr Chew in any event identified the same jobs except for one. [111]A breach of natural justice may be able to be cured, particularly if there has been a reconsideration of the matter afresh (Ridge v Baldwin [1964] AC 40 at p.79 per Lord Reid and Calvin v Carr [1980] AC 574). The subsequent fresh medical examination by Dr Sprott cures any earlier breach of natural justice incurred by Dr Chew. Occupational Assessment [112]The Occupational Assessment identified the various job options and outlined why the Occupational Assessor was of the opinion that the appellant had the requisite education, training and experience to undertake the positions. [113]The appellant has been involved in web-site design, development and administration of his own employment called �Blurb� for some 2� years. There has been input into discussing the web-site through MacKay Services and also Alistair Emerson. In reports from Mr MacKay dated 12 January 2000 and 17 February 2000 he outlined the progress the appellant had made and his various skills. Mr MacKay, detailed what was further required to have approval by ACC of the self-employment option. [114]In a report dated 18 November 1998 by Alistair Emerson, in which he undertook a full assessment of the web-site he wrote: �Mr Van Helmond is self taught in web-site design and implementation, which given the recency of the whole of the Internet, is not unusual. He demonstrates a good grasp of the techniques required, and has mastered the most essential design skills � creating informative first (splash) page and providing simple site navigation procedures. We have no reservations about his technical ability.� [115]The appellant himself identified to the respondent and the vocational assessors on many occasions that his interest was in developing his website business. The appellant had invested over $50,000 in website development. I refer in particular to the Claimant Quality Check dated 6 February 2002. The Occupational Assessor was satisfied from her interview with the appellant and the vocational reports provided to her that the appellant had the skills to undertake the website positions. On page 5 of her report she wrote: �Website Designer, Website Developer, Website Administrator �Fran has been self-developing with website design for some years while recovering from his injury. He has particular interest in this area, and he has the necessary skills.� [116]In the Job Detail Sheets for those positions it identified training and or experience. The Occupational Assessor determined that the appellant had the requisite experience. [117]In respect to the Property Manager position, the appellant worked as a Manager of youth hostels for one year with the Youth Hostel Association in Queensland. In his Curriculum Vitae that was prepared as part of the appellant�s Vocational Assessment it outlined in detail his management skills. As well as managing the youth hostels, the appellant was also self-employed on a contract basis for Enerco Gas and had experience in running his own business. MacKay Services had input and forwarded reports during the period he was working as a contractor for Enerco Gas. It is submitted that the appellant had the requisite transferable skills, for the positions identified. [118]It is submitted that the Work Rehabilitation Assessment Process was complied with. In his review application and at the review hearing the appellant raised issues over the signing of the final IRP and also whether he was given review rights. The hearing was adjourned so that the respondent case manager Ms MacDonnell could provide a statement regarding those issues. A statement dated 7 November 2002 was presented. Ms MacDonnell confirmed that the IRP was signed by the appellant and further that review rights were given. The Reviewer accepted this statement. Decision [119]I should first deal with the submission that the medical report of Dr Chew and the intervention Dr Percival infringed the principles of natural justice, and hence the later medical assessment of Dr Sprott should not be used. [120]In my opinion, on the facts of this case, it was open for the respondent to obtain a further independent medical opinion once it became apparent the use of Dr Chew�s opinion was unfair. Indeed, if the respondent had not taken that course, as the review officer said, the assessment capacity procedure would have been voidable on the basis of infringing the principles of natural justice. However, as discussed, it is competent for that defence to be cured by re-assessment by an another independent medical assessor. If that was not the case, then the respondent would be indefinitely in the future prevented from invoking the work capacity procedure. [121]In my view, on the facts of this case, there is no substance in this particular point for the reasons that I have given. [122]I accept that the appellant has deficiencies in bookkeeping and administrative skills, and for that reason I would rule out the occupation of website administrator. However, in respect to the occupation of website designer/developer, I am of the view that these are suitable occupations for the appellant. It seems clear that the appellant has considerable experience developed by himself in these areas. This experience was such as he was prepared to himself engage on a prospective basis at a business level in this area. It is also noted that the appellant had turned down opportunities for work trials on the basis that he wished to concentrate his energies in developing a business in this particular area. [123]The authorities are clear that it is sufficient if there is only one suitable occupation nominated under the procedure for the appellant as an occupation. [124]In respect to the medical report of Dr Hancock, with respect, again on the authority of Ramsay (supra) unless there is any flaw in the work capacity assessment, or other cogent evidence arising from the medical opinion of the medical assessor, Dr Sprott, the Court should not readily entertain the opinions of the later medical opinion. [125]I can see no flaw in the medical report of Dr Sprott or the occupational assessment such as would enable the Court to relevantly consider the opinions of Dr Hancock. [126]For the reasons that I have given I would dismiss this appeal. There will be no order as to costs.
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