Decision No. 227//2005
The Accident Rehabilitation & Compensation Insurance Act 1992
UNDER AND
IN THE MATTER of an appeal pursuant to section 97 of the Act
BETWEEN
MARK MADGWICK of Dunedin
Appellant
(Appeal No. 46/05 )
AND ACCIDENT COMPENSATION CORPORATION
Respondent
HEARING at DUNEDIN on 22 June 2005
APPEARANCES/COUNSEL
P. Sara for appellant
I. Hunt for respondent
RESERVED JUDGEMENT OF JUDGE J. CADENHEAD
The issue
- Whether ACC's decision dated 7 August 2003 confirming that the appellant had vocational independence was correct.
- There are two substantial issues: first, whether the procedure followed was incorrect as under the 2001 legislation should the initial occupational and medical assessments have been obtained in respect to a fresh vocational independence assessment occasioned by deterioration, and second, whether the occupational assessment was flawed as going to only a compound of job types rather than specific jobs?
Background
- I substantially adopt the matrix of facts supplied by the respondent, which I find accurate. The appellant has an accepted claim for cover with ACC for a lower
back injury, which he sustained on 17 September 1998.
- The appellant originally injured his back about eight years ago as a result of a motorcycle accident. The injury was manifested in a work aggravated injury in 1998. Following acceptance of his claim for cover, the appellant received various statutory entitlements, including weekly compensation..
- ACC also funded the appellant's rehabilitation. As part of his rehabilitation ACC assisted the Appellant to obtain his bus drivers licence.
- Once he had obtained his bus drivers licence, the appellant secured employment as a bus driver with Ritchies Transport carrying out a school run for 2 to 3 hours a day, 5 days a week. The appellant remained in employment with Ritchies Transport for 6 months. In November 2001 the appellant obtained casual employment as a bus driver with Passenger Transport which involved him working between 5 to 8 hours a day, normally 5 days a week.
The first work capacity assessment
- Towards the end of 2001 ACC referred the appellant to the work capacity assessment procedure under the provisions of the Accident Insurance Act 1998 ("the 1998 Acf').
- On .11 December 2001 the occupational assessor, Flora McCallum, identified 12 work types which she considered suitable for the appellant by reason of his education, work experience and transferable skills:
- Coach Driver
- Forklift Driver
- Crane Operator
- Light Truck Driver
- Heavy Truck Driver
- Aluminium Joiner
- Weed Sprayer
- Steel Worker
- Structural Steel Erector
- Quality Controller of Concrete Workers
- Plastics Extruding Machine
- Factory Inspector
- Coach Driver
- A medical assessment was then carried out by Dr Donald Jones who reported on 16 January 2002. In his report Dr Jones identified 6 job options which he considered the appellant was capable of working in for 35 or more hours per week:
- Coach Driver
- Light Truck Driver
- Heavy Truck Driver
- General Staff Supervisor
- Plastics Extruding Machine
- Factory Inspector
- Coach Driver
- Following decision advising receipt of Dr Jones' report, on 4 February 2002 ACC issued a that the appellant's entitlement to weekly compensation would cease on 3 May 2002 on the basis that he had been assessed as having a capacity for work in 6 types of employment.
- No review application was lodged in respect of ACC's decision.
- On 22 May 2002 the appellant's GP, Dr Williams, wrote to ACC advising that his condition was now stable but that a good seat, if this could be incorporated into his longer runs, would be beneficial to keeping his back in good condition.
Deterioration
- On 7 May and 13 May 2003 the appellant's GP, Dr Williams, provided ARC 18 rnedical certificates indicating the appellant had had a flare up of his back. injury and certifying him as unable to resume duties at work.
- On receipt of the medical certificates the appellant's file was transferred to ACC's Dunedin branch and on 29 May 2003 ACC wrote to the appellant advising that as the medical certificates had indicated a deterioration in his condition, ACC needed to undertake a reassessment of his vocational independence. The letter advised that a vocational independence assessment would need to be carried out to establish whether, because of the deterioration in the appellant's condition, he was unable to consider any of the job options assessed as suitable for him in 2002. The letter advised that a referral had been made to Career Services to commence the vocational independence assessment process.
Vocational independence assessment
- The appellant was subsequently referred to Peter McBeth of Career Services, Rapuara to carry out a vocational independence assessment. In a report dated 18 June 2003 Mr McBeth identified 7 job types which he considered suitable for the appellant, based on his education, work experience and transferable skills, namely:
- Bus Driver
- Car, Taxi and Light Van Drivers
- Heavy Truck Drivers
- Crane Operators
- Metal, Rubber and Plastics Products Assemblers
- Other Rubber and Plastics Products Machine Operators
- Motorised Farm Machinery Operator (including Contractor)
- Bus Driver
- Mr McBeth noted that the appellant's job experience included 6 months as a causal bus driver with Ritchies Transport and 18 months as a bus driver with PT Transport, noting that he had obtained his bus licence in approximately 2000. In relation to the appellant's transferable skills, Mr McBeth noted that:
- "Transferable skills assessor comments
Mark's skills are largely in the areas of machinery operation and vehicle operation. However, with his recent work as a bus driver, he has gained some experience in public relation skills.
Types of work that particularly interest the claimant
Mark indicates he is particularly interested in continuing his work as a bus driver. He enjoys vehicle operation work"
- "The occupation discussed with the client and considered appropriate is "van driver". Although "taxi driver" is listed under this category Mark does not hold an appropriate licence.
Mark has well developed driving skills and is familiar with Dunedin localities through his work as a bus driver. He expresses some interest in this role.
Claimant comments (if applicable): Mark indicates a concern that heavy lifting would be required for some van delivery roles."
- "Description
Drive and instruct in the driving of light motor vehicles to transport passengers and freight May involve any combination of tasks related to the following activities:
Drives a vehicle to transport passengers; Drives a light lorry or delivery van to transport freight over short distances; Gives instruction and theory in application of proper motor vehicle driving skills.
Environment and junction
Standing: sometimes - task by role dependent
Walking: sporadic - short distances.
Sitting: long periods driving.
Heavy lifting, pulling, or carrying: intermittent in some roles.
Driving: can be for prolonged periods, depending on role.
Bending occasional - some tasks.
Other: may work long and or irregular hours.
Mental activities: organising, alertness and communicating (especially driving instructors), decision making and instruction following."
- "NZSCO uses the following two definitions for determining what is an occupation and what is a job.
- An occupation is a set of jobs which involves a performance of a common set of tasks.
- A job is a set of tasks performed to be performed by one individual Two jobs are similar if they require the performance of similar set of tasks, that is, if they involve the same type of work
The medical assessment
Following receipt of the occupational assessor's report, the appellant was referred to Dr Xiong to carry out the relevant medical assessment. In a report dated 2 July 2003 Dr Xiong recorded, inter alia, that:
- "He told me that his back had flared up 2 months ago. He had been working full time for a year now as a Bus Driver He attributed the flare up towards his excessive work and probably also the unsatisfactory seating arrangements...
Currently his low back pain is much better and even though he has some constant aching discomfort most of the time he can cope. Occasionally he experiences severe pain which is a twisting or stretching feeling..."
- Bus Driver
- Car, Taxi and Light Van Drivers
- Heavy Truck Drivers
- Crane Operators
"Car Taxi and Light Van Driver - he is physically capable of performing this job. He would need to be mindful that he would need to have frequent breaks and get out of the vehicle to walk around and stretch his back rather than prolonged sitting. Overall he should be vocationally independent in this area..."
- Car, taxi and light van driver
- Crane Operator
- Bus Driver
The Legislation
- The Corporation may determine the vocational independence of-
- a claimant who is receiving weekly compensation:
- a claimant who may have an entitlement to weekly compensation.
- a claimant who is receiving weekly compensation:
- The Corporation determines a claimant's vocational independence by requiring the claimant to participate in an assessment carried out-
- for the purpose in subsection (3); and
- in accordance with sections 108 to 110 and clauses 24 to 29 of Schedule 1; and
- at the Corporation's expense.
- for the purpose in subsection (3); and
- The purpose of the assessment is to ensure that comprehensive vocational rehabilitation, as identified in a claimant's individual rehabilitation plan, has been completed and that it has focused on the claimant's needs, and addressed any injury-related barriers, to enable the claimant-
- to maintain or obtain employment; or
- to regain or acquire vocational independence."
- to maintain or obtain employment; or
"Corporation to determine vocational independence
- An assessment of a claimant's vocational independence must consist of-
- an occupational assessment under clause 25 of Schedule I; and
- a medical assessment under clause 28 of Schedule 1.
- an occupational assessment under clause 25 of Schedule I; and
- The purpose of an occupational assessment is to --
- consider the progress and outcomes of vocational rehabilitation carried out under the claimant's individual rehabilitation plan; and
- consider whether the types of work (whether available or not) identified in the claimant's individual rehabilitation plan are still suitable
for the claimant because they match the skills that the claimant has gained through education, training, or experience
- consider the progress and outcomes of vocational rehabilitation carried out under the claimant's individual rehabilitation plan; and
- The purpose of a medical assessment is to provide an opinion for the Corporation as to whether, having regard to the claimant's personal injury, the claimant has the capacity to undertake any type of work identified in the occupational assessment and reflected in the claimant's individual rehabilitation plan."
"108 Assessment of claimant's vocational independence
- The Corporation may determine the claimant's vocational independence at such reasonable intervals as the Corporation considers appropriate.
- However; the Corporation- must determine claimant's vocational independence again if --
- the Corporation has previously determined that the claimant had-
- vocational independence under this section; or
- a capacity for work under section 89 of the Accident Insurance Act 1998; or
- a capacity for work under section 51 of the Accident Rehabilitation and Compensation Insurance Act 1992; and
- vocational independence under this section; or
- the Corporation believes, or has reasonable grounds for believing, that the claimant's vocational independence or capacity for work may have deteriorated since the previous determination.
- the Corporation has previously determined that the claimant had-
- The claimant may give the Corporation information to assist the Corporation to reach a belief under subsection (2)(5)."
"109 When claimant's vocational independence to be assessed
- An occupational assessor undertaking an occupational assessment as part of an assessment of a claimant's vocational independence under section 108 must-
- take into account information provided by the Corporation and the claimant; and
- consider the individual rehabilitation plan prepared for the claimant and review the vocational rehabilitation carried out under the plan; and
- discuss with the claimant all the types of work that the assessor identifies as suitable for the claimant; and
- consider any comments the claimant makes to the assessor about those types o f work
- take into account information provided by the Corporation and the claimant; and
- The Corporation must provide to an occupational assessor all information the Corporation has that is relevant to an occupational assessment"
"25 Conduct of occupational assessment
- The occupational assessor must prepare and provide to the Corporation a report on the occupational assessment specifying-
- the claimant's work experience; and
- the claimant" education. including any incomplete formal qualifications; and
- any work-related training in which the claimant has participated; and
- all skills that the assessor has reasonably identified the claimant as having; and
- the vocational rehabilitation that the claimant has received under the individual rehabilitation plan or in any other way; and
- the outcome of the vocational rehabilitation; and
- all types of work reasonably identified as suitable for the claimant; and
- in relation to each type of work, the requirements of that type of work, including any environmental modifications that the assessor identifies as necessary to enable the claimant to junction safely in that type of work
- the claimant's work experience; and
- The Corporation must provide a copy of the report to the claimant and the medical assessor.
"26 Report on occupational assessment
- A medical assessor undertaking a medical assessment as part of an assessment of a claimant's vocational independence under section 108 must take into account-
- [a] information provided to the assessor by the Corporation; and
- any individual rehabilitation plan for the claimant; and
- any individual rehabilitation plan for the claimant; and any of the following medical reports provided to the assessor:
- medical reports requested by the Corporation before the individual rehabilitation plan was prepared:
- medical reports received during the claimant's rehabilitation; and
- medical reports requested by the Corporation before the individual rehabilitation plan was prepared:
- the report of the occupational assessor under clause 26; and
- the medical assessor's clinical examination of the claimant; and
- any other information or comments that the claimant requests the medical assessor to take into account and that the medical assessor
decides are relevant.
'28 Conduct of medical assessment
- The medical assessor must prepare and provide t6 the Corporation a report on the medical assessment specifying-
- relevant details about the claimant, including details of the claimant's injury; and
- relevant details about the clinical examination of the claimant 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 claimant's condition; and
- the assessor's opinion of the claimant's vocational independence in relation to each of the types of work identified in the occupational assessor's report; and
- any comments made by the claimant to the assessor relating to the claimant's injury and vocational independence in relation to each of the types of work identified in the occupational assessor's report.
- relevant details about the claimant, including details of the claimant's injury; and
- The report must also identify any conditions that-
- prevent the claimant from having vocational independence; and
- are not related to the claimant's injury.
- prevent the claimant from having vocational independence; and
- The Corporation must provide a copy of the report to the claimant."
"29 Report on medical assessment
The review decision
Submissions of the respondent
Vocational independence assessment
- First require a claimant to undergo an initial occupational assessment followed by an initial medical assessment (pursuant to sections 89 to 96 of the 2001 Act); or
- Treat the occupational and medical assessments carried out as part of the process of determining capacity for work under the 1998 Act as some sort of "de facto" IOA and IMA assessments.
Occupational assessment
Appellant's submission, the occupational assessor Mr McBeth did identify that the appellant did not hold the appropriate licence. Nevertheless Mr McBeth considered that this job option was suitable for the appellant, particularly in relation to the job of van driver. Mr McBeth identified that the appellant has well developed driving skills, is familiar with Dunedin localities through his work as a bus driver and has expressed some interest in this role.
Conclusion
Dated at. Wellington this 26 day of. July 2005
District Court Judge[/list][/list][/list]