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Waa V A C C (332/2004) VIAP quashed - incomplete rehab.

#1 User is offline   ernie 

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Posted 21 December 2004 - 10:09 AM

WAA v ACCIDENT COMPENSATION CORPORATION


District Court, Wellington (332/2004); 20 October 2004
Judge J Cadenhead

M Watson, for Appellant
S Mechen, for Respondent

RESERVED JUDGMENT OF JUDGE J. CADENHEAD

The Issue


[1]The issue is whether or not the respondent correctly assessed the appellant as having a capacity to work.

[2]There are two issues that arise in this case. The first issue concerns the submission of the appellant that he had not completed his rehabilitation in terms of the rehabilitation plan.

[3]He was on a trial job, which was supposed to be monitored. In addition, the medical report of Dr Ruttenberg indicated that he would not be suitable to work in his former employment. The trial was for three months, but inside that trial the appellant was assessed for his work capacity procedures, and similarly inside that trial period the employer of the appellant advised that it did not have a position for him.

[4]Issue 2 is whether or not the medical condition and abilities of the appellant satisfy the two job requirements.

Narrative of Facts

[5]The appellant suffered an initial injury when he dislocated his left shoulder on 21 August 1999 while playing rugby. He had a repair to his shoulder and tendons by Mr Andrew Herbert, orthopaedic surgeon, on 21 February 2000.

[6]Following this surgery, it was estimated that the appellant would be off work for six months, during this time he had mild rehabilitation commencing with some physiotherapy mostly by way of swimming which was monitored by physiotherapist Mr Bogardus.

[7]After returning to work the appellant aggravated his left shoulder when he was inadvertently tackled while refereeing a rugby game on 30 September 2000.

[8]The first Individual Rehabilitation Plan (“IRP”) completed following the injury of 30 September 2000 was completed on 9 October 2000 and signed by both parties. The interventions focused on monitoring the shoulder injury.

[9]The dislocation was further reduced and in March 2001, Mr Herbert carried out a further repair of the left shoulder.

[10]Following the surgery in March 2001 an IRP was completed in June 2001 and signed by both parties. The main intervention was to extend physiotherapy as per Mr Bogardus recommendation, to continue to attend the Kawakawa hot pools. Physiotherapy was extended for a further ten sessions.

[11]The IRP was updated on 24 August 2001 and signed by both parties. The main interventions were continuing the physio programme and to attend a review with Mr Herbert, orthopaedic surgeon. This plan spoke of the appellant possibly returning to light duties and further treatment. It was contemplated that there would be a work program that would assist in a safe return to work on the basis of gradually increased hours and it would be monitored on a progressive basis.

[12]Following the review by Mr Herbert the case manager would discuss any recommendations with the appellant. If there was medical clearance then a graduated return to work programme would be put in place.

[13]At review Mr Herbert noted that the shoulder was still dislocated and therefore the appellant was referred to Mr Tim Astley, orthopaedic surgeon, who carried out a shoulder reconstruction on 26 September 2001 consisting of a rotator cuff repair anterior stabilisation. It was estimated that the appellant would have a recovery period of approximately six months.

[14]Mr Herbert forwarded a report on 26 November 2001, he noted there had been a gradual improvement in the postoperative pain. He noted that the appellant would be able to return to some work but not the heavy work that he had been involved in prior to the injury.

[15]Mr Herbert wrote again on 6 December 2001 in answer to questions that had been put to him regarding the appellant’s status and ability to return to work. He noted that at his last assessment in September 2001 the appellant was making satisfactory progress. He advised that the appellant would not be able to return to his former work and was likely to have a significant long-term disability with his shoulder. It was unlikely that he would be able to perform any form of heavy activity.

[16]The appellant had a meeting with the case manager on 6 December 2001 and plans were put in place for a vocational assessment and an occupational physician assessment to determine alternative job options, if the appellant was unable to return to his pre-injury employment. Following this the appellant’s IRP was updated on 14 December 2001 and signed by both parties.

[17]The main interventions on the updated IRP were a referral to an occupational physician, referral to a vocational provider for vocational assessment and CV to identify employment skills and suitable alternative employment. Also to continue with the physio programme which would include a restoration programme to assist the appellant to build up function and strength in the use of his left arm and shoulder. Once medical clearance was gained for light duties a referral would be made to an occupational assessor for a work place assessment.

[18]A report was forwarded on 17 December 2001 from Taskmaster Northland who completed a vocational assessment inclusive of a curriculum vitae.

[19]Following the six week restoration programme Mr Bogardus, physiotherapist, reported on 28 January 2002, he advised: -

“John worked very consistently during the 6 week rehab period. We experienced very few problems with post exercise soreness. I met with John on 6 occasions for ½ hour 1 to 1 sessions. John came more often than that and also included light weight training at home using dumb bells.

John gained range of motion and forward flexion from 45° to 50°, and abduction from 45° to 50° of glenohumeral motion, as expected there was no increasing external rotation. There was also a significant increase in scapular mobility. There has been an increase in strength and shoulder stability. There was some occasional soreness associated with some activities, which John did at home but this did not present as a very significant problem.

All in all, this period of rehab has run a more satisfactory course than our experience prior to the recent surgery. John will very likely always have significant limitation of motion in the left shoulder, particularly external rotation and elevation or forward flexion. In my opinion, John will be limited from doing any jobs, which require 75° or more of left shoulder elevation and I would be extremely cautious of heavy loading of the left shoulder even within available range. Given the degree and duration of problem, it is likely that the shoulder will always be somewhat irritable.

Thank you for the opportunity to work with John. He is a pleasure to work with.”

[20]The appellant was referred to Dr Ruttenberg, occupational physician who reported on 4 February 2002. Dr Ruttenberg’s overall comment was

“In my opinion his incapacity prevents him from returning to his pre-injury employment at AFFCO on a full time basis. I think he would not manage in such an environment. It would be inappropriate for him to return to his pre-injury tasks…

I have reviewed the job options with Mr Waa today. In my opinion he could explore the role of courier and truck driver. The role of caretaker and grounds person would be dependent on the exact task description and need to complete physically demanding tasks. He would probably manage as a forklift or road machine operator. It might be appropriate for there to be occupational therapy input into prospective work trials in these above options.

SUMMARY

Mr Waa is a 33 year old gentleman who has sustained repeated trauma to the left shoulder and has undergone numerous surgical repairs in this regard. He currently has significant limitation of function.

While he does have discomfort, there is no evidence of a chronic pain syndrome and he is fit to return to a more appropriate working environment. Multi disciplinary vocational rehabilitation in this respect is encouraged.”

[21]A medical certificate was received on 5 February 2002 advising that the appellant was fit to return to normal work on 18 February 2002 his restrictions were no abduction of the arm, no stretching upwards, otherwise able to do light work as advised.

[22]The appellant contacted his case manager on 7 February 2002 and advised that he was fit to return to work and his GP had certified him fit for light duties. His wife had misgivings and mentioned Dr Ruttenberg’s report, which the case manager did not have. He would contact AFFCO to see if any light duties were available. The other alternative was to obtain a work trial in one of the jobs discussed with the vocational assessor. The case manager did not have a copy of Dr Ruttenberg’s report or the medical certificate at this stage. She would wait to hear from the appellant and receive the reports.

[23]The appellant advised the case manager on 8 February 2002 that he would be able to start work doing light duties on 18 February 2002. The case manager advised she would organise a work site assessment.

[24]The return to work was co-ordinated via Mary Beaumont, Health & Safety Manager at AFFCO, John Smith at AFFCO and Steve Restieaux, occupational therapist. By e-mail dated 15 February 2002 Mr Restieaux advised that the work that he had been shown that the appellant could do would certainly be in his capacity. Mr Restieaux advised that he would liaise with AFFCO and put together a proposal for a work site assessment and graduated return to work.

[25]Mary Beaumont wrote to K Dransfield and said that AFFCO had laid off one process shift and this affected the ability to financially fund the appellant’s rehabilitation back into the work force. However, a trial was to commence on 12 March 2002. At the end of the three month trial a review would be held between the appellant, the supervisor, Steve Restieaux and the company doctor to establish if the appellant was able to fulfil a job on the beef slaughter floor. During the work trial the appellant’s progress would be monitored by the supervisor on a weekly basis and by Steve Restieaux as documented on the work trial plan.

[26]This letter concludes by thanking the respondent for its help in enabling the continuation of the appellant’s rehabilitation during the lay off period.

[27]The appellant was advised on 28 March 2002 that as his vocational rehabilitation had been completed he was now ready to be assessed for his capacity to work. The letter went on to advise that as he was in paid employment the procedure would not commence at this stage but should his medical certificate not clear him to work the process would commence immediately.

[28]Steve Restieaux wrote to the case officer on 4 April 2002 and indicated that the appellant had recently returned to work at AFCO following a serious rotator cuff injury and that this was a work trial. It was expected that as the appellant’s tolerance increased his time to perform tasks would increase for longer periods. The work trial was being monitored and reviewed weekly. This report was dated 4 April 2002. It should be noted that this was received after the appellant was advised that his vocational rehabilitation was complete.

[29]By letter dated 9 May 2002 the appellant was advised that his medical certificate had expired it went on to advise that as he had returned to fulltime employment with his pre accident employer earning greater than his ACC entitlement his file would be closed.

[30]By letter dated 20 June 2002 Ms Beaumont advised that they had been unable over the trial period to integrate the appellant back into the plant completing a full manning job. As there were no light duties on a full time basis available they would not be able to continue the appellant’s employment. A copy of that letter dated 20 June 2002 is set out hereunder:

“This letter is a follow up to your quick conversation with Dr Fenton this afternoon, regarding concern’s about John working in the meat processing plant.

Re: John Waa ACC NO: Q070854 Injury Date: 30/0902

Affco Moerewa has attempted to trial John Waa back to work at the plant. The trial finished on the 7th of June 2002. John has been unable to fulfill a manning job as discussed with you on the phone the 5th of March. A letter was posted to you on the Friday the 8th of March confirming the conversation held between you, John and myself.

It was agreed that John would have 3 month trial ending on the 7th of June 2002. At the end of this period of time John had to be able to complete a full manning job. The tasks of cutting cod fat, detain work and the wizard knife were selected as manning rotation to reduce over head work or heavy lifting. Unfortunately to date he has been unable to do this and the work trial has not been completed successfully as far as the current supervisor and manager of the slaughter area are concerned. John also has concerns regarding his ability to complete these tasks on an ongoing basis.

There are no light tasks available on a full time basis on our plant.

It was expected that Steve Restiaux the OT would set up and monitor John Waa’s progress on the work trial and ensure that John was not being put at further risk by his occupation. The work trial and review process was not been completed by the OT as he was informed that Catalyst was no longer involved. The last month of his trial increasing his duties to detain and wizard knife did not happen. The work trial was also set up prior to the OT being given Dr Ruttenburg’s report that clearly states he will not be fit for his pre-injury work environment.

Unfortunately it had been very difficult to acquire the necessary specialist reports to determine John’s capacity to work in the meat industry in a full manning job or his ability to gain enough ability to do so in a safe manner. The Company has now received a report from Dr David Ruttenburg of which you have a copy. This report clearly states that it is inappropriate for him to return to the AFFCO work environment.

Nearly all jobs in the process area are manual based with a great deal of above shoulder height work, therefore we will be terminating his employment on grounds of unable to perform work due to his shoulder injury, that he was employed at Affco to perform.

It is noted that in Dr Ruttenburgs report he clearly recommends that work trials in identified job options be carried out and later in the report he gives the options. Please could you assist John to get these work trials and help him get into the work force in a different work environment from ours that may be more appropriate for his injury.

John says he is very keen to work and does not want to be left stranded. Dr Fenton, Affco Moerewa’s Company Doctor is very keen that John be given assistance by your organization through the ACC process of rehabilitation.

Affco will carry John for one more week to give you time to respond to these issues and assist John to re-open his case.

Please could you post a copy of your reply to Dr Fenton Main Road Moerewa and to John’s GP Dr R Milner in Kaikohe.

The team is very disappointed that this trial has failed and wish John the very best in your next endeavours with his rehabilitation.”

[31]There was a reply to this letter by the case manager, Kelly Dransfield, dated 3 July 2002, and I set that reply out as follows:

“I can confirm to you that John Waa was assessed by Dr Ruttenberg Occupational Physician, on the 4th of February 2002. This report was forwarded to John and his GP Dr Milne upon receipt into this office.

I spoke to John after he had received Dr Ruttenberg’s report and advised that he was fit to return to the work force on a full time basis doing alternative work as outlined by Dr Rutterberg. That he now had to locate a job and that I could assist him with his job search assistance and a work trial. John informed me that he would contact Affco as he wanted to locate work there. We discussed the fact that it was his choice where he worked and that he would be considered for Work Rehabilitation Assessment after a short time frame.

John became financially independent from ACC when he returned to work at Affco and his file was closed. He was also considered ready to be assessed through the Work Rehabilitation Assessment Process but this procedure was not commenced, as he had become independent.

Johns file remains closed until such time as he makes a formal application to have it re-opened. The usual procedure will be followed in assessing his claim. John will then be required to commence the Work Rehabilitation Assessment process.

I hope this information is helpful.”

[32]On 9 July 2002 a further letter was sent by the case manager setting out the content of a chronology of events and regretting that the content of her earlier letter was incorrect.

[33]On 18 July 2002 the appellant wrote advising that his work had been terminated as at 2 July 2002 accordingly he requested the reopening of his file.

[34]The Production Manager, Mr David Stuart, confirmed that following the completion of the three-month trial, the appellant’s incapacity did not enable him to fulfil manning rotation at AFFCO and employment was terminated as at 2 July 2002.

[35]The appellant’s medical certificates continued to clear the appellant for normal hours.

[36]Once the file was re-opened the work capacity assessment process that had begun continued.

[37]The appellant returned his Work Rehabilitation Assessment and Claimant Quality Check on 29 July 2002. The appellant did not raise any issues in the claimant comments section.

[38]The GP Questionnaire also part of the Work Rehabilitation Assessment Process was returned on 19 August 2002. The appellant’s GP did not advise any further ongoing treatment. He advised that the appellant did not have the capacity to work in his pre-injury employment but did have the capacity to work in other types of employment.

[39]A review was lodged at this time (July 2002), however following mediation it was withdrawn.

[40]On re-opening the file the appellant commenced a four-week Work Preparation Programme this was not part of his rehabilitation but an extra programme to assist in gaining job search skills. This was completed and a report forwarded on 5 September 2002.

[41]On 9 August 2002 Marea Brown carried out an occupational assessment. Ten job options were identified that matched the appellant’s skills, training and experience.

[42]Following this, the appellant was referred to Dr Gollop, medical assessor who identified two of the job options as suitable for the appellant.

[43]A decision letter was issued on 11 November 2002 advising the appellant he had a capacity for work.

[44]A review application was lodged on 25 November 2002.

[45]A review decision was issued on 6 May 2003 in the respondent’s favour.

The Relevant Legislation

[46]The principal legislative provision governing this case is section 89 of the Accident Insurance Act 1998, which provides as follows:

“89 Insurer 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;
(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).”

Legal Principles

[47]The following legal principles are pertinent to this appeal:

(i)The provisions of section 89(3) of the 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. It is the completion of the vocational rehabilitation that the insurer was liable to provide that is important (Grimstone (246/99), Beattie DCJ).

(ii)It is not necessary that the claimant has an ability to attain comparable remuneration with that which may have been received pre-injury. (Grimstone supra).

(iii)The assessment must factor in the ability of the claimant to both vocationally and physically carry out the range of tasks, which a particular job option may encompass in its normal and usual requirements. The issue is employment specific and not job specific, which connotes a wider generic consideration. (Meiklen (207/01), Beattie DCJ).

(iv)In Mouritsen (322/2002) Judge Middleton said that a finding of capacity for work had serious implications for an appellant, and should not be made unless it is supported by strong evidence. While the procedure may be convenient for the respondent to remove long-standing beneficiaries from its files that is not the spirit of the legislation. The whole purpose is to provide compensation for injured persons and, as far as possible, to rehabilitate them to the workforce. In keeping with the spirit of the legislation the identification of job options should be realistic and should have some relationship to the education, training and skills of a claimant. I concur with this approach and it is obvious that any job options must be reasonably tailored to the physical attributes and skills and experience of the specific claimant.

(v)The last principle is consonant with the administrative law requirement that a discretionary power must be exercised reasonably and the decision maker must take into account only relevant considerations. The converse proposition is that the decision maker must not be influenced by considerations that ought not be taken into account. Most statutory empowering provisions set out the criteria that will govern the exercise of the discretion. Mandatory considerations are ones that the decision maker must take into account (Consitutional and Adminstrative Law in New Zealand, P.A. Joseph (2nd Ed) pp792-3.)

[48]In my view, s.89(3) is a mandatory requirement, and before the WRAP procedure may be initiated, it is necessary that the insured had completed any vocational rehabilitation that the insurer was liable to provide. In my view, having regard to the comments of Dr Ruttenberg, it cannot reasonably be said that on the facts of this particular case the appellant’s medical condition had stabilised to an extent that vocational rehabilitation was complete.


[49]Section 89(3) of the Act is mandatory. For the reasons that I have given above it is not only competent, but obligatory, for the Court to examine whether the statutory procedures have been carried out before the WRAP procedure can be said to have been properly initiated.

[50]Because of the importance of a determination that the appellant has a capacity to work by the medical assessor, it is equally important that the statutory precondition procedures are complied with by the respondent. The statutory intent is that the respondent will, along with the appellant, endeavour to rehabilitate the appellant, and after that process has been completed, then the respondent can move to the step of determining the issue of capacity to work. The twin elements of “rehabilitation” and “capacity to work” complement one another. The discretionary statutory power vested in the respondent is designed to affect that purpose. The statutory power must be exercised reasonably in accordance with administrative law principles having regard to that statutory purpose.

The Review Decision

[51]The decision details of the review read as follows:

The onus is on Mr Waa to prove, on the balance of probabilities that ACC’s decision is erroneous. This was confirmed by Judge Beattie in Wakenshaw v ACC (64/2001) where he stated:

‘I choose to follow the decision of the High Court in Fowlie which is in line with the common thread of decisions of this Court that the onus of proof is upon the claimant to establish at any time or when called upon so to do that he or she has a continuing right to any entitlement under the Act which he/she may currently be enjoying, or which he/she may seek to obtain.’

The issue in this review is whether ACC acted correctly in concluding that the work capacity assessment process, together with the vocational rehabilitation, had been properly completed.

Section 89(3) of the 1998 Act requires that Mr Waa must have completed any vocational rehabilitation that ACC was liable to provide under his rehabilitation plan, before an assessment of capacity for work can be undertaken.

Mr Waa does not believe he has been adequately rehabilitated. I have carefully read the individual rehabilitation plan, that was completed on 14 December 2001 and signed by both parties. I note that the interventions on the IRP included a continuation of Mr Waa’s physiotherapy programme, with referrals for occupational and vocational assessments planned.

Although Mr Watson submits that rehabilitation was not completed, I can find no satisfactory evidence to substantiate this. As Ms Mechen has argued, the final IRP was signed by both parties on 14 December 2001, and Mr Waa did not raise any outstanding issues in the claimant questionnaire that he signed on 29 July 2002. The GP Questionnaire also indicated that Mr Waa had the capacity to work, although not in his pre injury employment.

Having considered all the evidence, I am satisfied that s.89(3) of the Act has been complied with and that Mr Waa has completed the vocational rehabilitation that ACC was liable to provide under his rehabilitation plan.

As no issues were raised over the occupational and vocational assessments, it is not necessary for me to make any finding in respect of those.

I note Mr Waa is now undertaking full time teacher training.

For the above reasons Catalyst’s decision of 11 November 2002 is confirmed. The application for review is unsuccessful.”

The Respondent’s Submissions

[52]The respondent submits pursuant to section 89(3), an insurer is entitled to assess a claimant’s capacity for work where the claimant had “completed any vocational rehabilitation that the insurer was liable to provide under the individual rehabilitation plan. Pursuant to s.89(4), the insurer may determine the insured’s capacity for work at such reasonable intervals, as the insurer considers appropriate.

[53]The other key provision in the 1998 Act is section 15, which provides the definition for “Capacity for Work”. The appellant had a number of IRP’s completed following his second injury of 30 September 2000. The final IRP was drawn up on 14 December 2001.

[54]The IRP’s were developed with the input of the appellant and were signed by the appellant. It is submitted that all rehabilitation was completed as at 28 March 2002. The appellant was advised on 28 March 2002 that as his rehabilitation was completed he would now be assessed for his capacity to work. The appellant was advised in this letter that as he was currently in paid employment and was independent from the respondent that the process would be completed if and when his medical certificate indicated he was not independent.

[55]When the appellant requested his file to be reopened in July 2002 following termination of this employment the assessment process recommenced. Pursuant to section 369(2) of the Injury Prevention Rehabilitation and Compensation Act 2001 provided the assessment process had commenced prior to the introduction of the 2001 Act the process could be completed under the former Act.

[56]Sections 93 to 100 of the Accident Insurance Act 1998 set out the process for the Work Rehabilitation Assessment Process. Section 93 is the first step. The first step in the process is to advise the claimant in writing that as rehabilitation was complete his work capacity would be assessed. The appellant was advised of same on 28 March 2002.

[57]Marea Brown completed an occupational assessment on 9 August 2002. She identified ten job options related to the appellant’s skills, experience and training. The appellant’s work experience was mainly as a slaughter man at AFFCO. The appellant returned to AFFCO for a work trial doing light duties. The appellant also had previous positions as a truck driver, surveyor’s assistant, farm labourer and cleaner. The appellant obtained one subject in School Certificate. As part of the Pre Employment Programme the appellant completed a basic computer course. The appellant was also extensively involved in refereeing rugby at representative under-14 competitions and senior club rugby. The appellant had his HT licence and was currently working 15 hours per week in a mentoring role at Bay of Islands College. The job options identified were:

Butcher – retail or supermarket

Meat Grader

Truck Driver

Van Driver

Cleaner

Caretaker – School or sports club

Groundsperson

Handyperson/Maintenance

Customer Services/Sales – Sports goods, Bookshop

Recreation Centre Assistant

[58]All the job options identified were discussed with the appellant as stated in the occupational assessment.

[59]It is submitted that the occupational assessment complied with the legislative requirements.

Medical Assessment

[60]Dr Gollop completed the medical assessment, his qualifications are in accordance with the Accident Insurance Act 1998. Dr Gollop reviewed all medical and occupational information inclusive of the occupational assessment. Dr Gollop carried out a thorough examination of the appellant and detailed his findings in the report. Dr Gollop identified two job options which he opined that the appellant could work for 30 to 35 hours or more, they were:-

Customer Services/Sales Representative – Sports, Book Shop

Recreation Centre Assistant

[61]In providing rationale for this Dr Gollop wrote:-

“Customer Services/Sales Representative

Recreation Centre Assistant

Both Mr Waa and the Medical Assessor felt that these were of light physical work that they were within his physical capability and therefore would be suitable. It is noted that the Occupational Assessor has noted that there would be some intermittent carrying but it is the opinion of the Medical Assessor that this would be of short duration and would not require the left arm to be abducted above the 50°.”

[62]Each of the job options were discussed with the appellant. It is submitted that Dr Gollop’s report was balanced, reasonable and comprehensive.

[63]Following the medical assessment it was realised that two documents had unfortunately been omitted these were the Claimant Questionnaire and the GP Questionnaire. These were forwarded to Dr Gollop on 30 October 2002 and an e-mail was received from Dr Gollop on 31 October 2002 which recorded:-

“Further to the additional reports from the GP and the Claimant Questionnaire for Mr John Waa, I have reviewed my report of October 2002 and support the recommendations as submitted. In my history and assessment I covered the material covered in the additional report.

Regards
Bruce Gollop”

Submissions of the Appellant

[64]The appellant could not understand why his file was closed, as he was on a work trial and still on rehabilitation, and this was in line with the rehabilitation plan dated 14 December 2002. The case manager had stated that his return to work on light duties would be monitored to ensure his safe return to work. This contention is re-affirmed in the letters from Mr Steve Restieaux and the health and safety manager, Mary Beaumont.

[65]The occupational physician, Dr Ruttenberg, writing on 4 February 2002, was of the view that it would be appropriate for the appellant to be subject to occupational therapy, and input into prospective work trials in the occupations of a courier and a truck driver.

[66]Dr Ruttenberg thought it would be well for the appellant to have multi-disciplinary rehabilitation, and that he would be able to work a full eight hour day in an appropriate working environment within the next few months.

[67]The appellant submits that the accredited employer and the occupational therapist were determining a successful return to work programme, and that the appellant was not aware of Dr Ruttenberg’s report that he was not suitable for the freezing works environment. The submission is that his employment at Affco was terminated on 2 July 2002 as a result of the company receiving Dr Ruttenberg’s report, almost at the completion of the work trial.

[68]The submission is that Catalyst failed to provide the necessary vocational rehabilitation by not implementing Dr Ruttenberg’s recommendations, which would have determined another rehabilitation path for the appellant. The respondent did not consider the occupational physician’s recommendations that a multi-disciplinary vocational rehabilitation approach was to be encouraged, and that the appellant was not fit to return to the freezing works environment.

[69]The appellant requested that his file be re-opened, because he did not consider that he had received adequate rehabilitation.

[70]The respondent, it is submitted, proceeded with the work capacity procedure that it had initiated, by sending the appellant to a work preparation programme, where he completed a very rudimentary course in computing.

[71]It is submitted that rehabilitation was flawed in that the occupational physician’s report was not considered. The work trial agreed to was not completed. The appellant submits that he did not receive adequate rehabilitation.

Decision

[72]It seems clear from the medical report of Dr Ruttenberg dated 4 February 2002, that the work trial that the appellant undertook was doomed to failure. It is significant in that medical report that Dr Ruttenberg explored two positions, and thought it would be appropriate for there to be occupational therapy input into prospective work trials in those positions.

[73]Dr Ruttenberg believed that the appellant would do well with multi-disciplinary rehabilitation, and that he would be able to work at a full eight hour day and in an appropriate working environment within the next few months.

[74]It is significant that shortly after that date, Mary Beaumont arranged for a work trial period for the appellant which should be monitored on a weekly basis, and was documented by Steve Restieaux on a work trial plan. It is clear that Ms Beaumont considered this part of the appellant’s rehabilitation.

[75]However, shortly after that on 28 March 2002, the case manager said after reviewing the vocational rehabilitation programme, she was satisfied that vocational rehabilitation had been completed, and that the appellant was now ready to be assessed for work capacity. It is this date that is regarded by the respondent as being the date that the rehabilitation was completed.

[76]Again, on 4 April 2002, Steven Restieuax was advising the respondent that the appellant was still on a work trial that was being monitored and reviewed weekly.

[77]Pursuant to s.89(3) it is encumbent upon the respondent for it requires the insured to participate in any assessment to show that the insured has completed any vocational rehabilitation that the insurer was liable to provide under his or her individual rehabilitation plan. At the time that the respondent considered rehabilitation complete, the appellant was still engaged in a work trial.

[78]I consider that on the facts of this case that the respondent has acted prematurely in the determination that rehabilitation was complete. I make this finding having regard to the comments of Dr Ruttenberg.

[79]The work trial having been unsuccessful, the appellant and the respondent should have conferred, along with other relevant advisers as to what other rehabilitation was necessary.

[80]I do not think it was appropriate for the respondent merely to have ignited its earlier determination that rehabilitation was complete, when plainly that was not the case.

[81]For the reasons that I have given, I would allow this appeal.

[82]I would allow the appellant $1,000 plus disbursements costs.
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#2 User is offline   BLURB 

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Posted 30 November 2009 - 10:54 AM

Quote

[80]I do not think it was appropriate for the respondent merely to have ignited its earlier determination that rehabilitation was complete, when plainly that was not the case.

[81]For the reasons that I have given, I would allow this appeal.

[82]I would allow the appellant $1,000 plus disbursements costs.



Stick that where the sun don't shine Sandra Mechen!

Catalyst - Kelly Drainfield

Goes to show these Catalyst Takapuna branch (LTCU) staff are dishonest, just like you are Sandra! Didn't they employ any honest people?
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#3 User is offline   jocko 

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Posted 01 December 2009 - 08:14 AM

It appears she made misleading statements in the administration of the claim. Charges will be pending no doubt. yeah right
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