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Beecher V Acc (254/2003) WCAP/VIAP - the correct legal test

#1 User is offline   ernie 

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Posted 17 October 2004 - 05:06 PM

BEECHER v ACCIDENT COMPENSATION CORPORATION


District Court, Wellington (254/2003), 10 October 2003
Judge J D Hole


APPEARANCES
Ms F Taylor, Advocate for Appellant
Ms A Moodie, Counsel for Respondent

RESERVED JUDGMENT OF JUDGE J D HOLE

Facts

[1]On 30 September 1990, the appellant was working as a kitchen assistant at the Waikato Hospital. She and a colleague picked up a large basket of cutlery. About 10 minutes later she experienced pain in her lower back which radiated up her spine.

[2]As a result, she was certified unfit for work.

[3]On 1 March 1999, Dr Walls, an occupational medical specialist, reviewed her file. Dr Walls considered that it was not practical for the appellant to return to her previous job. However, she could begin working restricted hours in another form of work so long as she did not have to stoop, twist or lift more than five to 10 kilograms. He thought that as her stamina increased she would be able to increase the hours of work and range of duties. He appreciated that, in her case, rehabilitation would be difficult to achieve and would not occur within a short period of time.

[4]In January 2001, the respondent and the appellant completed an individual rehabilitation plan.

[5]In a report dated 11 August 2001, Mr Jeremy Hopkins, orthopaedic surgeon, concluded that, while the appellant was unlikely to return to her previous occupation, she should be able to return to lighter duties not involving bending, lifting or carrying. Thus, she would not be able to return to work as a hairdresser or a cleaner, but she was capable of undertaking some type of clerical work.

[6]In August 2001 the appellant also saw a musculoskeletal physiotherapist. Ms Dibden concluded her report by stating:

“Observation, physical assessment and functional testing did not provide evidence of any lumbar or lower limb impairment. She has normal movement patterns, normal range of motion, normal muscle strength (except mild loss in left quadriceps) and normal neurological tests.

It appears that her functional ability is significantly limited by her perception of pain and disability”.

[7]Dr Ruttenberg, an occupational medical specialist, commented after seeing the appellant on 30 August 2001 generally along the same lines as Mr Hopkins.

[8]On 11 October 2001, the appellant underwent a vocational assessment at Ergoworks. Several job options were identified on the basis of her skills, education, experience, physical capabilities and the local/regional market. These were: retail, receptionist, ticket booth attendant, sales merchandiser and caregiver.

[9]In November 2001, the appellant underwent a work trial at a medical centre as a medical receptionist. This was for five weeks, increasing from three hours per day to seven hours per day in the fifth week. Ergoworks reported that she had undertaken the trial well and that new skills had been learned. Thus, the trial was successful but the appellant noted that she experienced increased pain the longer she worked.

[10]During this period of time, the appellant undertook some training to improve her computer skills. It was reported that she initially had a very low level of skill but that this increased significantly.

[11]On 10 February 2002, she underwent an occupational assessment with Mr Murray Hahn. Eleven positions were assessed as being suitable for her and, for the purposes of this decision, these included hotel/motel receptionist.

[12]On 25 February 2002, she was seen by Dr Monash, an occupational physician, for a work rehabilitation medical assessment. In his report dated 25 February 2002, he concluded that the only job which was suitable for the appellant was that of a sales assistant in a pharmacy. However, the appellant thought that too much standing would be involved if she were to undertake such a position.

[13]On 8 April 2002, Dr Monash revised his opinion. It was clear that his opinion of 25 February 2002 was not based on a job description undertaken by an occupational assessor. Accordingly, he was referred to Mr Hahn’s assessment and, as a result, concluded that the appellant was capable of undertaking three types of occupation, namely a pharmacy sales assistant, a medical receptionist and a hotel/motel receptionist. The appellant thought that there would be too much standing involved as a pharmacy sales assistant. Insofar as the other two occupations were concerned, she doubted she had sufficient endurance to last for 35 hours per week.

[14]On 14 November 2002, Dr Dryson reported that he considered she was suitable to undertake hotel/motel receptionist duties. However, if an alternative job description (to that of Mr Hahn) was used in accordance with NZSCO Code 42211 (which included standing six to eight hours per day and sitting occasionally) then the appellant would not be suitable for this type of work.

[15]It is evident that there was some confusion as to what the occupation of a hotel/motel receptionist would involve. This was resolved, to some extent, by a report from Mr Steve Berry who seems to be an occupational consultant. In his letter of 10 April 2003, he said that some hotel receptionists (such as those who work for the larger hotels) stand for most of the time: others (who might work in a more budget type hotel occupation) stand less and undertake other sedentary duties such as book work.

[16]On 16 September 2003, Dr Monash reported that he had been very conservative in his choice of jobs for the appellant. He thought that those suitable required about the same level of endurance and physical output as normal activities of everyday living. He could not identify any components of the work that were significantly onerous or physically challenging. He stated that he thought there was no impairment which prevented the appellant from doing these tasks 35 or more hours per week.

Review Decision

[17]In determining whether the appellant had a capacity for work, the reviewer concluded that she did have the capacity to undertake the work as a hotel/motel receptionist. However, he considered that she did not have the capacity to undertake a position as a medical receptionist or retail sales assistant – pharmacy.

Issue

[18]Thus, the issue to be determined is whether the appellant has the capacity to undertake work as a hotel/motel receptionist.

Legislation

[19]Section 369 of the Injury Prevention, Rehabilitation and Compensation Act 2001, which came into force on 1 April 2002, is relevant. Where an assessment of vocational independence has commenced under a former Act and has not been completed before 1 April 2002, then the assessment is completed under the former Act but takes effect as if it were an assessment of capacity for work under the 2001 Act. In these circumstances, this appeal must be determined under the Accident Insurance Act 1998.

[20]Section 15 of the 1998 Act states:

“(1) “capacity for work”, in relation to an insured, means the insured’s capacity, having regard to the consequences of his or her personal injury, to engage in employment –

(a)for which he or she is suited by reason of experience, education or training or any combination of those things; and
(b) for 30 hours per week”.

[21]Section 94 of the Act provides that in undertaking an assessment of an insured’s capacity for work there must be an occupational assessment and a medical assessment. The purpose of the occupational assessment is to identify suitable types of employment which match the skills that the insured has gained through education, training or experience. The medical assessment is to provide an opinion as to whether, having regard to the personal injury, the insured has the capacity to undertake any type of employment identified in the occupational assessment.

[22]Accordingly, it is necessary to first identify the types of employment which are suitable for the appellant. Then, it is necessary to determine whether, having regard to her injury, she has the capacity to undertake that type of employment.

Occupational Assessment

[23]The appellant does not have a significant history of clerical employment. At one stage she was involved in a business wherein she sent out the accounts and that sort of thing. However, her computer skills remain rudimentary although it is clear from the work training which she undertook that she has the capacity to learn.

[24]In considering this aspect of this case, however, the test under s 15 refers to those skills which an insured currently has: not those skills which she may be able to obtain through training.

[25]Mr Hahn’s work rehabilitation assessment noted that the skills required for a hotel/motel receptionist include a sound clerical background and/or formal training. He considers that a person undertaking these duties requires to undertake either a full-time hotel receptionist course or three to six months on the job training. Communication, organisational and keyboard skills are required. The evidence indicates that the appellant does not have these skills although possesses some ability to obtain them with training.

Medical Assessment

[26]An analysis of the medical opinions indicates that the appellant’s physical ability to undertake hotel/motel receptionist work depends upon the job description. If too much standing is required, then the appellant does not have the requisite physical ability. In this case, two job descriptions have been provided and Mr Berry’s opinion of them is helpful. He concluded that some hotel receptionists stand for most of the time, whereas others stand less and have a more sedentary occupation doing bookwork. All the medical opinion indicates that the appellant is capable of undertaking work for 30 hours per week.

Conclusion

[27]Buffett v Accident Compensation Corporation (334/02) is helpful. In that case, Judge Beattie commented:

“Whilst it may well be the case that an actual employment position might be one which does not have the disqualifying characteristics, that is not the test. The determination that needs to be made by the medical assessor is that the appellant is physically capable of carrying out all functions and activities that the generic description of the employment option would require. There can be no selectiveness or limitations”.

[28]In this case, the appellant has limited skills. Further, the medical opinions indicate that she is capable of undertaking hotel/motel receptionist duties provided these do not require too much standing.

[29]Thus, the appellant may well be capable, given her skills and medical condition, of undertaking some types of hotel/motel receptionist duties. However, as Judge Beattie commented, that is not the test. The test is whether or not the appellant is capable, both from a skills and a medical point of view, of physically carrying out all of the functions and activities that the generic description of the employment option would require. To suggest that the appellant is capable of undertaking some types of hotel/motel receptionist duties involves a degree of selectiveness or limitation not envisaged by the legislation.

Result

[30]The appellant has discharged the onus on her. Accordingly, the decision of the reviewer is quashed and the appellant’s weekly compensation is to be reinstated.

[31]The appellant has succeeded in her appeal. Accordingly, she is entitled to solicitors’ costs against the respondent which I fix in the sum of $1,200.
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#2 User is offline   hukildaspida 

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Posted 05 June 2014 - 01:51 PM

Interesting & helpful for those that have been assessed to do similar such types of "employment"
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