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Powell Vs Acc (al 499/2001) Work Capacity - Spine Injury

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Posted 29 September 2004 - 11:06 AM

DECISION NO. 62/2002
UNDER the Accident Insurance Act 1998
In ThE MATTER OF an appeal pursuant to section 152 of the Act
Al 499/2001

Hearing: 18 February 2002 (Heard at Dunedin)

Appearances: P J Sara for appellant A D Barnett for respondent

Judgment: 4 March 2002


Background and Legal Test
  • This appeal concerns the respondent’s assessment that the appellant has the capacity to perform a range of occupations for 30 hours or more per week.

  • The Reviewer, Mrs E A Grant, concluded that there is “no ground to interfere with assessments made by duly appointed and qual fled assessors, where there is no clear and cogent evidence that the assessments are wrong

  • In my view, the Reviewer has correctly stated the test for re-evaluating assessments in work capacity cases. In saying that, I am conscious that Judges have expressed the test in different ways. Thus in Savage v ACC (95/2000), an application for leave to appeal, Judge Middleton said:

    “... unless there was been a glaring fault in the manner in which the
    assessments have been made then the respondent and the Court are bound to
    accept that.”

    DC WN DECISION NO. 62/2002 [4 March 2002]
    F43 And in LiddeZZ v ACC (235/2000), the same Judge said:

    “... the fact is that in the ultimate their assessments are extremely close. The
    Court has held in many decisions in relation to this issue that unless there is
    a serious divergence of opinions between properly accredited assessors then the Court must accept the assessments of the duly appointed assessor.”

  • Mr Sara submits that this dicta puts the test too high. He points out that there is nothing in the legislation which requires the Court (or a Reviewer) to accept as conclusive, an opinion given by an accredited medical assessor, as counsel submits to do so would:

    “... elevate the medical assessors to a pre-eminent position among their
    peers and cloak their opinions with unassailable authority.”

  • Mr Barnett, relying on Savage and Liddell (above), contends that Judge Middleton was right to approach this matter as he did because the medical opinion of a duly accredited assessor is given in the context of a complete process beginning with the work capacity assessment, which identifies if there is any work suited to the appellant’s skills and experience, and ending with the medical assessment. It decides whether the injuries suffered by the appellant make it physically possible for that person to carry out any of the activities identified by the occupational assessment.

  • Counsel submits that given the continuity and interdependence of the two parts of this process, then it must inevitably follow that the decision of the accredited medical assessor must prevail.

  • With respect, I do not agree for the following reasons:

    a) If that had been Parliament’s intention, it would have said so. It has not.

    b) To construe the process in this way would render otiose the right of review of a medical assessor’s work capacity decision except in those cases where the process is flawed or there is some “glaring error “in the doctor’s assessment. There is no overt hint of this in the legislation.

    c) While accepting that there are a number of steps in the process, it is essentially twofold, as discussed above. The doctor is not involved in the vocational assessment and the vocational assessor is, of course, not involved in the medical process, unless the doctor seeks further information. The doctor’s opinion takes account of the vocational assessor’s report. Doctors can and often do reject work categories found to be available to a claimant by a vocational assessor. SOmetimes they add fresh categories. 1 see no reason why an independent medical specialist, furnished with all of the relevant information available to the accredited specialist, cannot express an equally valid opinion on the particular person’s physical ability to perform for 30 hours per week, or not, any of the jobs identified by the vocational assessor.

    d) The fact of accreditation is an administrative procedure sanctioned by the legislation. No doubt the respondent is always careful to ensure that only suitably qualified doctors are accredited, but that is not to say a doctor who is not accredited, merely by that fact alone, is disqualified from giving an opinion on- a_claimant’s physical ability to perform, or not, categories of work.

  • In coming to these views, I am encouraged by the way in which Fisher J approached and analysed the work capacity scheme in Kenyon v ACC (19 December 2001, AI 258/00). His Honour expressed the view, but without deciding that the respondent in deciding for what work a claimant might be suited, must have regard to the consequences of that person’s personal injury (s.51(2) Accident Rehabilitation and Compensation Insurance Act 1992). In other words, it must take its victim as it finds him.

  • if that is the correct approach then it must be open to a non-accredited but suitably qualified doctor to make a valid assessment of the physical or mental state of an applicant. For what it is worth, that is the way I approached the matter in Gardner v ACC (22/2002) where I preferred the views of an experienced non-accredited psychiatrist to those of an accredited medical assessor who had no relevant psychiatric qualifications or experience.

  • With those considerations in mind. I return to the test adopted by the Reviewer. Given that the standard of proof is on the balance of probabilities, and that the onus lies on the party seeking to overturn the work capacity assessment (Kenyon above at para. 9), there can be nothing sacrosanct about the occupational assessment, or the medical assessment. It becomes a question on review or appeal of considering all of the available evidence, and, while giving full weight to the assessments, then considering whether or not they are on the balance of probabilities correctly decided on the basis of the evidence available to the assessor.

  • Finally, it needs to be remembered that the evidence available at review or on
    appeal may be different from that upon which the assessment was made.

    The Facts

  • The appellant injured her back in 1989. In January 1991, she underwent

    surgery. In February 1991 she was certified as being fully fit for work in six months’ time. To her great credit, the appellant immediately sought and obtained part time work in a number of different jobs.

  • By January 1999, the respondent thought that the appellant had sufficiently rehabilitated herse]f to justify a work capacity assessment. The occupational assessment was carried out by an experienced vocational assessor and concluded that the appellant was able to work at nine categories of work for 30 hours or more a week.

  • The doctor who carried out the medical assessment reduced the number to six. All of them education related.

  • The appellant was advised of the outcome on 17 May 1999; and that her compensation would cease from 17 August 1999.

  • Mr Sara, solicitor for the appellant, lodged an application for review asking, among other things, that the appellant’s general practitioner be consulted. He was and after hearing from him the respondent revoked its work capacity decision. The basis for this consultation about-face was the doctor’s opinion that it had taken the
    appellant neariy ten years to get back to working her current 15 hours per week. He
    considered this to be the maximum she could stand at that time.

  • Without requiring the appellant to undergo a further occupational assessment, the respondent referred her to another accredited specialist, Professor J C Theis, for a medical assessment. In carrying out that task, he was supplied with all relevant material.

  • On 22 December 2000, Professor Theis reported that in his view the appellant could carry out 7 of the original nine categories of work originally identified by the occupational assessor.

  • It is instructive to note that not only did the respondent think it open to it to send the appellant to another specialist but that he differed significantly from the first medical assessor on what jobs the appellant was medically fit to do for 30 hours per week.

  • On 21 September, the respondent advised the appellant that it bad decided she could work 30 hours or more in the seven categories nominated by Professor Theis. She was told that her weekly compensation would cease from 20 December 2000.

  • The appellant sought a review of that decision and made available further reports from Drs D McBride and B Tait, dated 11 April and 5 May 2001.

  • Dr Tait, Consultant Physician, considers the appellant is limited to less than 20 hours per week, because beyond that her back pain becomes unbearable.

  • Dr McBride, an Occupational Medicine Specialist, considers that the appellant is incapable of working in any of the named categories for more than 20 hours per week.

  • Dr Tait, who has tendered a most impressive summary of his experience and qualifications, also conducted a detailed examination of the appellant. He found that there was good objective neurological evidence of the reason why she is suffering the
    level of pain she is. When this was referred to Professor Theis, he simply disagrees with Dr Tait’s clinical findings. Clearly they cannot both be right.

  • The precise findings of Dr Tait are:

    “Investigations/Medical Imaging Studies"
    CT scan of the lumbar spine, dated 18 July 1990: “There is no abnormality

    Lumbar discogram (Prof Doyle), dated 21 November 1990: “The L4/5 and
    U/Si disc spaces were injected. The L415 disc shows mild degenerative change with a small posterior nuclear protrusion centrally. Injection of the L5/Sl disc appeared to reproduce the patient’s usual pain.”

    MRI scan, Lumbar spine, dated 18 February 1997: “On the sagittal sequences, there is dehydration and narrowing of the L4/5 and L5/S1 discs. There are some osteophytes at L5/S1 and in addition, there is some posterior disc bulge at this level.
    Canal dimensions are adequate and the distal spinal cord returns normal signal.

    On the axial sequences, the L3/4 and L2/3 discs appear normal.

    At L5/S1 there is some posterior disc bulge which is not impinging on the thecal sac or nerve roots. However, this area does show enhancement following Gadolinium-and the area of enhancement extends into the disc itself; suggesting that at least part of the appearance may be due to postoperative fibrosis.”

    - Mrs Powell is a thirty nine year old lady, who injured her back on 1 September 1989 and subsequently developed left leg pain. Because of ongoing symptoms Mrs Powell had an L4 to S1 fusion, with L5/S1 discectomy, in January 1991. She has ongoing symptoms of back and left leg pain, cramping in the left leg and paraesthesiae in the left leg which significantly limit her capacity to work. She is unable to work more than twenty hours a week because of these symptoms.

    L4/S1 fusion, L5/S1 discectomy, S1 nerve root compression (left), capsulitis left hip.”

  • Professor Theis’ report states:

    “Neurological examination revealed altered sensation in the left leg but not local ised to a particular dermatome. Straight leg raising on both sides was up to 80` and sciatic stretch test negative. Power and reflexes were normaL peripheral pulses were present and the rest of the examination was normaL


    1 reviewed plain x-rays between 22.11.90. and 21.1.92. The x-rays of her lumbar spine taken on 22.11.89. are within normal limits with perhaps some slight decreased disc space at the level of L5/S1. The latest x-rays available dated 21.1.92. show good fusion between L4 and S1. She also had a discogram at the level of L4/L5 and L5/S1 which showed a large central disc prolapse. An MRI scan carried out in 1997 has been reported as showing desiccation of the L4/L5 and L5/S1 discs with minor disc bulge at the L5/S1 level. There was also enhancement after injection of Gcmdolinium around the left S1 nerve root consistent with epidural fibrosis. The rest of the MRI looked fine.”

  • Clearly both doctors see the same objective evidence at L4/L5 and L5/S1
    levels. They choose to interpret it differently.

  • It is therefore difficult to see how Professor Theis can say in his comments of 6 June 2001.

    “I felt that the neurological examination was normal and I therefore
    disagree with Dr Tait ‘s clinical assessment.”


  • Given those inconsistencies, the different treatment of the occupational categories and the preponderance of specialist and non-specialist opinions, I am persuaded, on the balance of probabilities, that the medical assessment relied on by the respondent are flawed. They do not support the conclusion that the appellant is able to work in any of the:job categories for 30 hours-per week.

  • To the contrary, I am satisfied that the evidence establishes in a “clear and cogent” way that the appellant has made a determined effort to rehabilitate herseff and is capable of working no more than 15 hours per week. There is no evidence that she is malingering to stay on her weekly compensation.

  • Beyond 15 hours per week her pain level is such that she cannot continue with any of the job categories, or at best to an unacceptably reduced level of performance.

  • The respondent must take the appellant as it finds her. It cannot minimise the real importance of her pain in the work capacity assessment by calling it“subjective .

  • The appeal is allowed and the decision of the respondent is quashed.
    Signed at: ~ on: ~

District Court Judge

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Posted 14 January 2006 - 01:19 PM

attached is exact pdf copy of the paper judgment:

Attached File(s)


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