[doppelganger]

IN THE DISTRICT COURT HELD AT WELLINGTON

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
  
  
• 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
  
  
• 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)
  
  
• 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"
  
  
• In relation to the work type option of car, taxi and light van drivers, Mr McBeth recorded that the rationale for stating this work type was that:
  "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."
  
  
• The ACCI96 Job Detail Sheet for the job option of car, taxi and light van drivers describe the job requirements as:
  "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."
  
  
• It should be noted that this job detail sheet is NZSCO 1999 Code 8321 and is part of unit group 8321, which in turn subdivides down into the groups: taxi driver 83211, light truck or van driver 83212, and driving instructor 83213. The specific occupation types of the subdivision give more specific details relating to each of those job types. In respect to the concept of job and occupation the New Zealand standard classification of occupations 1999 states:
  "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
  A job is best described as a series or set of tasks in duties which reflect what a person does in their work A job usually has a specific title and a person may require all have any of the following attributes to enable them to perform their jobs..."
  
  
  • Unfortunately in this case the medical assessor was only provided with the unit group general characteristics of car, taxi and light van drivers. The individual job types assessment sheets were not filled out and provided.
    
    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..."
    
    
  • Dr Xiong subsequently identified 4 work types in relation to which he considered the appellant had vocational independence namely:
    • Bus Driver
      
    • Car, Taxi and Light Van Drivers
      
    • Heavy Truck Drivers
      
    • Crane Operators
    
    
  • In relation to the job option of car, taxi and light van driver Dr Xiong advised:
    
    "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..."
    
    
    
  • Following receipt of Dr Xiong's report, the file was referred to the branch review team consisting of the BMA Dr Gordon Hancock and team manager Margaret Brensell. Both Dr Hancock and Ms Brensell recommended acceptance of Dr Xiong's report and recommended that the appellant had vocational independence.
    
    
  • Accordingly on 7 August 2003 ACC wrote to the appellant advising that he had vocational independence in 3 job types namely:
    
    • Car, taxi and light van driver
      
      
      
    • Crane Operator
      
    • Bus Driver
    
    The Legislation
    
  • Section 107 of the Injury Prevention, Rehabilitation and Compensation Act 2001 provides:
    
    "Corporation to determine vocational independence
    • 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.
      
      
    • 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.
      
      
    • 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."
      
      
    • Section 108 of the legislation provides:
      
      "108 Assessment of claimant's 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.
        
        
        
      • 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
        
        
      • 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."
    
    
    • Section 109 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 provides:
      
      
      "109 When claimant's vocational independence to be assessed
      
      • 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
          
          
        • 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 claimant may give the Corporation information to assist the Corporation to reach a belief under subsection (2)(5)."
      
      
    • Cause 25 of Schedule 1 of provides:
      
      
      "25 Conduct of occupational assessment
      
      • 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
        
        
      • The Corporation must provide to an occupational assessor all information the Corporation has that is relevant to an occupational assessment"
      
      
    • Clause 26 provides:
      
      "26 Report on 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 Corporation must provide a copy of the report to the claimant and the medical assessor.
      
      
    • Clause 28 provides:
      
      '28 Conduct of medical 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
          
          
        • 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.
        
        
      • The Corporation must provide to a medical assessor all information the Corporation has that is relevant to a medical assessment."
      
      
    • Clause 29 provides:
      
      "29 Report on 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.
        
        
      • The report must also identify any conditions that-
        
        • prevent the claimant from having vocational independence; and
          
        • are not related to the claimant's injury.
        
        
      • The Corporation must provide a copy of the report to the claimant."
      
      
    • It should relevantly be noted that the provisions of sections 85 to 96, which deal with the initial occupational and medical assessments come under the heading of vocational rehabilitation and is a concept different from that of vocational independence. The first process is the forerunner of the vocational independence procedure and while the two processes harmonise towards a common goal they are different statutory processes. The requirements of one are not necessarily the same as the other.
      
    • In Hemnaings (Al 462/03) Judge Beanie thought that a reassessment in accordance with section 108 made it mandatory that such assessment consist of both an occupational assessment and a medical assessment. If no appropriate occupational assessment had been carried out that was a fatal flaw.
      
      
      The review decision
      
    • On 15 December 2004 the review application was dismissed. However, the reviewer amended the work types identified by the respondent and he was considered ashaving vocational .independence only in the work type of 832l, car taxi and light van driver only.
      
      
      Submissions of the respondent
      
      
      Vocational independence assessment
      
    • By a decision dated 4 February 2002 ACC determined that the appellant had capacity for work pursuant to section 89 of the 1998 Act.
      
    • Pursuant to section 109(2)(a)(ii) and (13) of the 2001 Act ACC must determine a claimant's vocational independence (again) if the Corporation has previously determined that the claimant had a capacity for work under section 89 of the 1998 Act and ACC believes, or has reasonable grounds for believing, that the claimant's vocational independence or capacity for work may have deteriorated since the previous determination.
      
    • Sections 107 and 108 of the 2001 Act, and clauses 24 to 29 of Schedule 1 to the Act, set out the procedure which must be adopted by ACC when determining a claimant's vocational independence. Essentially, this consists of undergoing an occupational assessment under clause 25 followed by a medical assessment under clause 28.
      
    • There is nothing contained within the 2001 Act to suggest that when carrying out a reassessment of vocational independence, ACC must:
      
      • 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.
      
      
    • The function of the IOA and IMA assessments is clearly stated in section 89 of the 2001 Act, namely to assess a claimant's vocational rehabilitation needs. Once those needs have been ascertained through that process, they then form the basis of a claimant's vocational rehabilitation programme with appropriate vocational rehabilitation initiatives being agreed upon and incorporated within the claimant's individual rehabilitation plan ("IRP")
      
    • Where that process has occurred, the purpose of the subsequent vocational independence assessment is, inter alia, to ensure that a claimant's vocational rehabilitation has been completed and, if so, to determine whether the claimant now has vocational independence.
      
    • However where the vocational independence assessment is a reassessment, and in particular where the reassessment follows an earlier decision that a claimant has work capacity, there must, logically, be a slightly different focus.
      
    • Because the effect of a finding that a claimant has work capacity (or vocational independence) is that a claimant is capable of working for 35 hours or more per week in identified job options, ACC has no ongoing obligation to provide vocational rehabilitation after the date of such a determination. While ACC may provide vocational rehabilitation assistance after that date, and while a claimant may engage in their own vocational rehabilitation initiatives, or indeed obtain and undertake full time employment, there is no active ongoing vocational rehabilitation requirement.
      
    • For this reason, it would be quite inappropriate for the occupational and medical assessors when carrying out a vocational independence reassessment, to focus on vocational rehabilitation. The effect of the earlier finding of work capacity or vocational independence is that a claimant has been provided with sufficient vocational rehabilitation.
      
      
    • It is accepted that, when carrying out the occupational aspect of a vocational independence reassessment, the occupational assessor should, to some extent, be guided by a consideration of the job options identified in the earlier occupational assessment (wherein it was found that the claimant had either work capacity or vocational independence). However the occupational assessor should not be restricted to a consideration of only those job options. Firstly, there is nothing in the legislation which suggests that such a restriction should apply. Further, it is quite possible that in the period between the original assessment and the reassessment, the claimant will have engaged in further training or have undertaken work in an area not covered in the original work capacity or vocational independence assessments. Clearly such futher training or work should be taken into account as part of any reassessment in determining whether a claimant still has vocational independence.
      
    • The present appeal is a case in point where, through work experience as a bus driver, the appellant has developed transferable skills suitable for other transport related occupations, specifically car, taxi and light van driver.
      
    • Although a vocational independence reassessment requires ACC to carry out both an occupational and medical assessment, it is submitted that the primary focus must be on the medical assessment on the basis that the whole reason for the reassessment is a belief that a claimant's vocational independence or capacity for work (i.e. their medical ability to work) may have deteriorated since the previous determination.
      
      
      Occupational assessment
      
    • In short, therefore, it is submitted that when carrying out the occupational component of any vocational independence reassessment, the occupational assessor should not be restricted to a consideration of only those job options identified in earlier assessments (specifically the earlier work capacity/vocational independence assessments) but should be entitled to consider any job options in respect of which the claimant has obtained education, work experience or transferable skills during the period since the earlier assessment;
      
    • Even if that were not the case, and was held that an occupational assessor, when carrying out a vocational independence reassessment was constrained by the job options identified in the earlier assessment, it is submitted that the job option of car, taxi and light van driver is not one which has "come out of left field" but is a job option linked to the job options identified in the occupational assessment as part of the WCAP process, and also the appellant's rehabilitation prior to that assessment (Jawhiri (278/04); Collins (404/2004; Priest (512/04). The earlier occupational assessment identified job options of coach driver, light truck driver and heavy truck driver. The appellant carried out rehabilitation, and worked for approximately two years as part of his rehabilitation, as a bus driver. It is submitted that those job options are sufficiently related to the job option of car, taxi and light-van drivers (as that job is described in the Job Details Sheet) such that such a job option is not "out of left field ".
      
    • In relation to that job option, it is accepted that the specific job of taxi driver requires a taxi licence which the appellant does not have. However contrary to the
      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.
      
    • It is submitted that the present case can be distinguished from that in Utumapa (58/2005). In that case, the job option identified by the occupational assessor was that of "Loss Prevention Officer". - The Court found that this particular work type came within the industry group known as "Security Officer" which required the need for a current security guard licence. The Court held that while it may be that a person within that category could be employed in a particular job-specific situation, which would be that of an in-store shop detective or shop floor worker, nevertheless that would not be regarded as being sufficiently generic to be a category which would acceptable as being a work-type for which a capacity for work could be determined (paragraph 16).
      
    • The facts in the present appeal are somewhat different. Here, the subcategory of "taxi driver" falls within the generic job description of "car, taxi and light van drivers". While the appellant does not have the relevant licence to perform one of the specific job types which fall within the more generic category, he does have sufficient training experience and qualifications to perform a number of other specific job options within the more generic category. In that regard reference should be had to the Job Details Sheet which sets out the general job tasks which may be required within that generic job type.
      
    • The point which was made in Utumapu (and which has been expressed in other cases) is that the job options identified by the occupational assessor must be of a generic job type, not specific to either a particular job or a particular employer. However that must cut both ways so that, provided a claimant is generally qualified to undertake a generic job type, the assessment will not be flawed because there happens to be a specific job falling within that generic type for which he may not be sufficiently qualified.
      
      
      Conclusion
      
    • I am of the view that vocational rehabilitation is a different statutory concept from that of vocational independence. The prescription for the latter is relevantly set out in the statute as requiring an occupational assessment and a medical assessment. I agree with the reasoning of the respondent in connection with this aspect of this appeal.
      
    • However, I am of the view, that the process was fatally flawed by the occupational assessor not addressing the specific job requirements, but rather adopting the broader unit group classification. Each of the individual job characteristics are subtly different. For example, a car driver on analysis equates with a driving instructor. A taxi driver has different tasks from a light truck or van driver and requires a taxi licence. The occupational assessment must be made in relation to each type of work, and the requirements of that type of work, including any environmental modifications that the assessor identifies as necessary to enable the claimant to function safely in that type of work. That the specific characteristics of each occupation is essential is complemented by the fact that the medical assessor has to go through the process of examining each job type in discussing the same with the appellant. The occupational assessment here was a group assessment and not job specific in a generic sense. -
      
    • In this case the appellant did not have a taxi licence. On a narrower ground it can be said that he was not able to do all jobs contained within the unit.
      
    • For the reasons that I have given I allow the appeal. The appellant will be entitled to costs of $2000 plus disbursements.
      Dated at. Wellington this 26 day of. July 2005
  (J Cadenhead)
  
  
  District Court Judge

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