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Jpatterson Vs Qbe Workable (al 579/01) s15 1998 act - Car Park Attendant

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Posted 29 September 2004 - 10:46 AM

IN THE DISTRICT COURT HELD AT DUNEDIN
Decision No. ???9 /2002
IN THE MATTER of the Accident Insurance Act 1998
AND
IN THE MATTER of an appeal pursuant to Section 152 of the Act
BETWEEN JOHN PATTERSON
(Al 579/01)
Appellant
AND QBE WORKABLE LIMITED
Respondent



HEARD at Dunedin on 30 April 2002


Mr P Sara, counsel for appellant
Mr A Blair, counsel for respondent

RESERVED JUDGMENT OF JUDGE M J BEATTIE
  • The issue in this appeal is whether the respondent’s decision of 1 June 2001, determining that the appellant had a capacity for work within the meaning of section 15 of the Act, was correct.


  • The background to this appeal may be shortly stated as foliows:
    • At the time the respondent made its decision which is the subject of this appeal the appellant was almost 63 years of age.
    • The appellant had spent his entire working life as a merchant seaman and in September 1999 he suffered an injury to his right shoulder in the course of his employment.
    • The respondent is the employer’s insurer in accordance with the provisions of the Accident Insurance Act 1998.

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    • The appellant’s injury was described as a large right rotator cuff tear involving both the subscapularis and supraspinatus tendons. That injury required surgery and such surgery was carried out in January 2000.
    • Following surgery the appellant underwent a course of physiotherapy and thereafter he was referred to Ann Potter, Employment and Training Consultant, for vocational assessment and back-to-work Plan. That report advised that even though the appellant had had only one form of employment in his 46 year working career, nevertheless he had acquired various transferable skills which could be applied to other forms of employment.
    • A second functional capacity evaluation was carried out in November 2000 and it advised that there were a range of jobs for which the appellant was suited.
    • In March 2001 the respondent determined to refer the appellant to the Work Capacity Assessment Procedure.
    • In April 2000 the appellant was referred to Sue Downey, Occupational Assessor for occupational assessment. Her assessment advised that based on the appellant’s education, training, work experience and transferable skills 5 job options were suitable for him, these being as follows:

      (1) Meter reader

      (2) Camping Ground Manager

      (3) Caretaker

      (4) Car Park Attendant

      (5) Stores Clerk
    • On 23 May 2001 the appellant was medically assessed by Dr Allison Drewry. Dr Drewry determined that the appellant was physically capable of working 35 hours per week as a Meter Reader and Car Park Attendant.
    • On the basis of those two assessments the respondent determined, by decision dated 1 June 2001, that the appellant had a capacity for work and that his weekly compensation would thereupon cease in 3 months from that date.

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    • The appellant sought a review of that decision. A review hearing took place on 31 October 2001 at which the appellant gave evidence. The appellant also introduced a report from Dr D G Hancock, Occupational Physician, whose advice was that the appellant was not physically capable of working for 30 or more hours per week as either a meter reader or car park attendant.
    • In his decision dated 6 November 2001, the Reviewer found that the evidence satisfied him that the appellant was not physically capable of carrying out the duties of a meter reader but that he did find that the appellant had a capacity for work as a car park attendant. On that basis therefore he confirmed the respondent’s primary decision, but modified it to the extent that the appellant had a capacity for work only as a car park attendant.
    • The appellant has now appealed to this Court against that decision but the respondent has not appealed against that part of the Reviewer’s decision which held that the appellant did not have a capacity for work as a meter reader.

  • In this appeal Mr Sara, counsel for the appellant, has challenged both the Occupational and Medical assessments as they relate to car park attendant. He submitted as follows:
    • The job option of car park attendant is not a match for this appellant.
    • The job description is incomplete and does not correctly detail the functions and activities required.
    • The function of accepting money and giving out change involves the operation of a cash register or similar and the appellant cannot operate a cash register.
    • The functions include the reaching out to receive money and ticket and give change. The appellant is not physically capable of doing this with his right arm.
    • The finding by Dr Drewry that the appellant’s injury would not be aggravated when carrying out the functions of a car park attendant was not the correct test for determining capacity for work.

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    • The fact that the functions required would involve the appellant experiencing pain is sufficient to find him unfit.
    • The pain which the appellant would suffer is a sufficiently disqualifying feature.

  • Mr Blair, counsel for the respondent, submitted as follows:
    • Dr Drewry’s assessment took account of the appellant’s pain associated with shoulder movement when making her assessment.
    • Dr Drewry’s report is to be preferred. Dr Hancock’s opinion is not based on the occupational assessment but from his own notion of what the job entails.
    • Dr Drewry’s assessment has not been shown to be flawed.
    • The fact that Dr Hancock has given a contrary opinion is not sufficient to find that Dr Drewry’s opinion is not to be accepted.

    DECISION


  • In this appeal the respondent’s decision, as modified by the review decision, is that the appellant has a capacity for work in the job occupation of car park attendant. That is the only job option which the distillation process through which this appellant has gone under the assessment procedures provided for in the Act, and thereafter the review procedure, has identified.


  • Mr Sara submitted that from an occupational perspective that particular job option was a mismatch having regard to the pre-accident occupation of the appellant. It was contended that the appellant formerly had a position which required specialised skills, was an occupation which provided a comparatively high income ($55K p.a.), whereas the job of a car park attendant was contended to be at the bottom of the heap, both in terms of skill, status and income.


  • I am aware that s.94 (2) of the Act requires the occupational assessment to identify employment that is suitable for the insured because they match the skills that the insured has gained for education, training and experience, but in the particular mix of this appellant’s circumstances and his age, I do not find that there are grounds to consider that the appellant is not suitable or that there is not a match. Each case must be considered on its own facts. The appellant is at an age where it is unrealistic to consider him for retraining into some other more highly skilled occupation which would be within his physical capabilities and he himself expressed no thoughts of any of the job options mooted by the Occupational Assessor as being “beneath him”~


  • Having said that however, I consider that there are manifest problems with this appellant’s suitability from a purely functional or skill perspective. The Occupational Assessor’s report gives as the job description of a car park attendant as follows:


    “A car parking attendant directs, parks and supervises customer’s cars in a car parking complex. They accept money and give out change while issuing tickets. They may have a role in checking the security of cars. They may do banking and clean car windows.”


    In the function and activity category, “stretching up or across” was described as being uncommon. The use of ticket machine and computer were described as common.

    Finally the description stated “the largest part of the job is answering customer’s questions the opening and closing hours, parking prices and permanent parking bookings.


  • The Court was not advised what was the source of the assessor’s information for that job description and those components but the Court was provided with the job description of car park attendant as established by KiwiCareers which the Court recognises as a source used by Occupational Assessors. In its job description the person is required to have good money handling skills and it notes that they usually work inside a small booth or office and the equipment includes a cash register or computer. The document contains certain visual illustrations of various work facets, including the booth where the person would be located and where payment from a customer is received.


  • I am satisfied that an integral part of the job of a car park attendant does involve the receiving of money and the giving of change from a booth to a driver seated in his/her car. The Court is aware that this function involves stretching up or across and it certainly would be a major function in the shift of a car park attendant. Furthermore, there may be times of the day when a large number of cars depart the car park at about the same time and which would give rise to considerable repetition of stretching or reaching out.

  • If the Medical Assessor considered that the largest part of the job was simply answering customer’s questions and she proceeded to make her assessment on that basis and that the stretching up or across would be uncommon, then I find that her assessment has been made on a job description which does not bear a proper relationship to the duties of a car park attendant, particularly those in a parking building or where the payment of money on presentation of a ticket is a part of the operation.


  • Dr Drewry was aware of the appellant’s problem with his right arm as a consequence of the serious shoulder injury that he did suffer and she noted that it was painful to raise it above shoulder level and that it fatigued easily with any vigorous or repetitive movement. She assessed the functions of a car park attendant as not involving any forceful or repetitive movements of the right arm and so therefore the condition of the appellant’s right shoulder would not be aggravated. It is that which she found as the criteria for determining that the appellant was physically capable of carrying out the duties of a car park attendant.


  • In so doing I find that the Medical Assessor has applied a quite incorrect test or criteria in coming to her decision that, having regard to the consequences of the appellant’s personal injury, he was capable of engaging in employment as a car park attendant for 30 or more hours per week. The test is not whether any particular activity associated with the job description would or would not aggravate the injury, but rather whether, having regard to the limitations which the injury places on the physical capabilities of the claimant, the claimant can properly carry out all the tasks required of the job for 30 or more hours per week.


  • The meaning of “aggravate” is of course “to make worse” and whilst a job function which would make worse a covered injury would undoubtedly be a disqualifying feature for that particular job option, it does not follow that for it to be a disqualifying feature the function must have aggravating qualities.


  • I interpret Dr Drewry as saying that whilst she recognises that some of the tasks that the appellant could be expected to carry out would involve pain and difficulty because of his shoulder injury, the fact that it would not involve an aggravation of the shoulder injury means that it can be done and that the appellant is therefore physically capable of performing the functions required of the job. I find that this cannot be the test.

  • Dr Hancock specifically addresses the functions of a car park attendant sitting in a booth and receiving money and handling a ticket and of the fact that this would involve the repetitive use of the appellant’s right arm and that this action would cause a significant aggravation of his pain. I do not see Dr Drewry and Dr Hancock being at odds in this matter, it is simply that Dr Drewry considered that experiencing of pain as being something that must be endured if it does not aggravate the injury, whereas Dr Hancock would suggest that because it would increase the pain, then that is sufficient for it not to be capable of being done.


  • In this case I am in agreement with Dr Hancock and certainly as a matter of law I find that the test or a medical assessment is not simply to determine whether a particular function would or would not aggravate the injury. For this reason therefore I find that the appellant cannot be said to be physically capable of carrying out all the duties expected of a car park attendant.


  • In the event that that finding should be proven wrong, 1 indicate that I further find that the occupational assessor has erred by determining that the appellant was capable of operating a computer, cash register or other ticket machine when the only information she had was that he had no such ability at all. In her assessment she acknowledges that fact and yet she considers the appellant has the necessary skills for a job where the use of a computer or other is common. In that respect I find that the assessment is well wide of the mark and that the appellant is not suitable for this type of employment as it does not match the skills which he has gained. Those skills being singularly related to his experience as a seaman.


  • For the foregoing reasons therefore I find that the decision to determine that the appellant has a capacity for work within the meaning of s.15 of the Act cannot be sustained and is hereby revoked. The consequence of this revocation is that the appellant is entitled to have his weekly compensation reinstated to him as from the date it ceased.


  • The appellant is also entitled to costs which I fix at $1,200.00.
    DATED at this to [t~~ day of 2002

M J Beattie
District Court Judge
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#2 User is offline   hukildaspida 

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Posted 22 June 2012 - 04:27 PM

Does anyone know where & how JOHN PATTERSON is now?

Just wondering if he managed to get his proper rehabilitation and appropriate service from ACC.

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