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Work Capacity 266/2004 Gordon Smith

#1 User is offline   doppelganger 

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Posted 09 February 2006 - 06:15 PM

IN THE DISTRICT COURT AT NELSON
Decision No. 266 /2004

UNDER The Injury Prevention, Rehabilitation and
Compensation Act 2001

IN THE MATTER OF
an appeal pursuant to section 149 of the Act

(Appeal Nos. Al 492/02 and Al 129/04)
BETWEEN GORDON PHILLIP SMITH
Appellant
AND ACCIDENT COMPENSATION
CORPORATION
Respondent

I-
Hearing: 3 June 2004

Appearances: J Zindel for appellant A D Barnen for respondent

Judgment: 6 September 2004



RESERVED JUDGMENT OF JUDGE D A ONGLEY


[1] The issue in this appeal is whether the Corporation was correct in its decision that Mr Smith had capacity for work. The particular occupation was that of a small engine repairer or small engine mechanic. Mr Smith claimed that he had no relevant experience or qualification for that job.


[2] Mr Smith was injured at his work as a bushman on 8th November 1984. while he was in the process of hooking a tree a winch rope hit a standing tree which fell on Mr Smith injuring his legs. He sustained a fracture of the left thigh, the left lower tibia and fiblar, the right upper tibia and fibular, the left ankle and lacerationsto the perineum. After an operation he was in intensive care for a week and in traction for over two months.
[3] An independence allowance assessor calculated 40% whole person impairment and gave the opinion that a return to full-time work was unlikely. Mr Smith has recently worked as a golf driving range assistant, picking up golf balls and working behind the counter. He says that for some weeks he has tried to increase his work from 12 to 17 hours but he has not been able to sustain it.


[4] By 2000 medical reports indicated that Mr Smith had recovered well from his injuries but he was left with structural deformities and associated limitations. It was also reported that the limiting factor in his current employment was the lack of increased work hours and work availability. Mr Smith thought that if the hours were available he could work 30 hours a week in a suitable job.

Work Capacity Assessment


[5] The work capacity assessment process in June 2001 identified six occupations for which Mr Smith was reported to be suited and able to work 30 or more hours per week, namely:

Golf driving range assistant

Caretaker

Small engine repair person

Photographic processor

Groundsman

Courier driver

[6] The Corporation issued a decision on 19 February 2002 under the 1998 Act that Mr Smith had a capacity to work for 30 hours or more per week in suitable employment. The ground for the decision was later modified when the Corporation accepted that Mr Smith was not fit for work as a groundsman or a courier driver. The decision that he was able to work for 30 hours or more per week in suitable employment remained.


[7] In a review decision the Reviewer decided that Mr Smith was not fit to work full time as a golf driving range assistant or a caretaker and that he did not have the skills to work as a photographic processor. In fact he reports being colour blind. The review failed on the ground that Mr Smith had a capacity to work as a small engine repairer. The original decision therefore remained effective, even though only one of six possible occupations was thought to remain viable.


[8] In this appeal Mr Smith has filed an affidavit explaining his lack of qualification and experience in small engine repair, supported by an affidavit from Richard Earle an engine re-builder for whom Mr Smith had worked on trial.


[9] The Corporation does not agree with the Reviewer's decision that Mr Smith was unfit to work as a golf driving range assistant or a caretaker and has given notice of cross-appeal. Otherwise the Corporation accepts the Reviewer's decision.


Small Engine repair work


[10] Mr Smith says that he has no suitable experience or qualification in small engine repair work. His experience has been limited to tinkering with a hot rod and assisting a qualified mechanic.


[11] Mr McCann's assessment of 21 December 2001 list his work experience:
Job Duration in years Employer Related training
and months taken
Assistant Groundsman 2 years Golf Driving Range
Labourer (work Trial) 1 month NCC Transfer Station Yes
Mussel Farm Labourer 2 years 6 months Sea Investments Yes
Auto Upholsterer 1 year 6 months Jim Goulding Auto Trim Yes
Car Parts Cleaner
(work Trial) 1 year Engine Developments Yes
Car Wrecker 2 years Nelson Auto Parts Yes
Bushman 9 months Wood Export
Builder's Labourer 5 years Australian Employers
Bushman l year PandKBeard Yes
Timber Orderman 4 years Baigent Timber Yes

[12] None of Mr Smith's work employment experience directly involved small engine repair. His work as a car parts cleaner and car wrecker could be regarded as a connected occupation. The nature of "related training" was not specified on the assessment sheet but it was expanded in the training section of the assessment under "car dismantling" with boxes ticked for "leads to a recognised qualification qualifies the claimant for a higher level job .. ongoing training needed for the qualification".


[13] In the "transferable skills" section of the assessment Mr McCann listed "removing car parts .. removing panels from cars", and under "hobby" Mr McCann listed "assembling a hot rod". He noted "Gordon has good mechanical skills. He has built his own hot rod. This is not a job Gordon would prefer to do."


[14] In his affidavit on appeal Mr Smith says the reason he told Mr McCann it was not a job he preferred was because he had no skills or qualifications. He says that the occupational assessor did not go into the individual aspects of the job description of small engine repairer with him, and did not ask whether he had particular applicable skills.


[15] In the Job Details Sheet relating to small engine repair, Mr McCann ticked various activity boxes but left unchecked "stretching up or across" and "squatting or crouching". Mr Smith maintains that they are functions that he would find difficult and that they are essential for small engine repair work. Mr Earle in his affidavit said there would be elements of lifting unless all parts were delivered by other staff for working on a bench, which is unlikely. He said that Mr Smith worked for him on an ACC work trial from August 1991 to March 1992 but did not do any engine repair work.


[16) Dr Kenny, in his report of 4 February 2002, noted that Mr Smith had stated at the time of examination that he had no experience at all in small engine repair work.


[17] Mr Smith, in his own affidavit, said that he had no small engine repair experience that would qualify him for employment. He said that he had good mechanical skills and could assemble parts, but that he had no training in identified skills of examining faulty machinery and equipment for defects nor for replacing damaged or worn parts, nor generally for assembling parts, looking to ensure accurate fit or testing reassembled equipment and readjustment of such equipment. He said also that he is unable to stand for long periods whether in one spot or not.

[18] Regarding his hobby work assembling a hot rod, he said he was working with qualified people; the engine work was done by Mr Earle and the transmission was rebuilt by Automatics in Christchurch. He paid for that work to be done. The wiring and painting was also done by professionals.


[19] Mr Smith said that he told the reviewer that he bought a chassis and put the already assembled motor in, assembling all the suspension parts with the help of trained people. The body was delivered and he mounted it on the chassis, his work being only to bolt the body onto the chassis at the required points. The job was strung out over three years. His own involvement was some hundreds of hours and was limited to assembly and not repair. He has since sent the car away for repairs because there is no engine repair that he could do himself.


[20] He said that his automotive dismantling job involved undoing nuts and screws to salvage parts and was the opposite of repair. It gave him some basic limited knowledge of the mechanics of vehicles. Mr Smith deposed that, contrary to comments in an earlier vocational report by Mr Hay, he did not have any experience in restoring classic cars and could only suggest that the remark was connected with his building of his hot rod. He has no experience with tooling to ensure an accurate fit and could do little more than minor adjustments and basic lubrication and maintenance.


[21] Mr Smith endeavoured to explain comments in the occupational assessment in 2001 in which Mr Hay, a vocational assessor, had referred to his "proven skills in dismantling and cleaning engine parts; skills in engine maintenance and repairs -replacing or repairing parts and accessories as required; experience and ability to tune a motor to high standards of operation". Mr Smith said:


The real situation here is that the Careers Service in 1997 had, as I recall, inserted these phrases and I didn't correct it when it was produced. I may have been asked whether I was interested but I never indicated that I had any experience or skills or qualifications in the area. I had told the Careers Service lady and Mr Hay about my hobby and I had told them that I had worked for the car wrecker/dismantler and [think that she and Mr Hay may have just adopted a more rosy view of what I was capable of to make the CV look better.

[22] Mr Zindel submitted that the report prepared by Mr Hay was a Workbridge report for the purpose of obtaining work. Comments in that report did not require the careful scrutiny of work capacity needed for a WCAP assessment.


Mr Ward's assessment


[23] The appellant obtained a second opinion from Mr Matthew Ward, vocational assessor in February 2004. Mr Ward considered Mr Smith's affidavit but still reached the view that the job of small engine repairer was suitable. He said:

Small engine mechanic is classified under the New Zealand Standard Classification of Occupations (NZSCO) 1999, classification number 72315. The option can also be know as bicycle repairman; garden machinery repairman; lawn mower mechanic; motor mower mechanic or repairer; motorcycle or outboard motor mechanic; outdoor power equipment technician. According to the NZSCO there are no formal qualifications are required for this job. On the job training is required and also mechanical, organisational, communication and problem solving skills. Other sources of information concerning entry to this job option (kiwi Careers) suggest that related experience, and a drivers licence (not essential but preferred) are required. Once a person is employed in this job option they have the option of training towards the National Certificate in Outdoor Power Equipment Servicing.

In my own professional experience I am aware of people being able to gain employment in this job option in the past two years with no prior experience. In considering whether Mr Smith does have a sufficient level of skills for this job option, it would be suitable to consider his related mechanical related work experience - car wrecker and car parts cleaner which total three years of related work experience.

In my professional opinion 1 would consider that Mr Smith does have a sufficient level of skills for this to be a suitable job option. Mr Smith does not have work experience in this option but he does have a sufficient level of related experience for this option to be fairly and reasonably identified. With regard to the 'Job Details Sheet' for this option I would consider that the job is of medium physical demand with standing, walking, stretching, squatting, crouching or kneeling. Rarely twisting of the body of neck would occur, and constant handling of parts covered in dirt, oil and grease. Lifting, carrying and holding would occur frequently. Use of hand, power, and machine tools and equipment would occur frequently as would bending. Mental activities involved would be mechanical and problem solving skills.

Finding - small engine repair


[24] In section 94(2) of the 1998 Act the purpose of an occupational assessment was stated to be "to identify types of employment that are suitable for the insured because they match the skills that the insured has gained through education, training, or experience".


[25] Mr Hay and Mr Ward considered that there was a sufficient match. Mr Ward considered the question with the advantage of full information concerning Mr Smith's lack of qualified experience. Both reached similar conclusions. The suitability of small engine repair work for Mr Smith's training and experience cannot be judged by interpretation of the NZSCO classifications and the job detail sheets. It is a matter for qualified assessors to measure.

Medical assessment


[26] Mr Zindel accepted that the effect of the judgment in Ramsay V Accident Jnsurance Corporation (High Court Dunedin, AP 412/14/02, 12 December 2002, John Hansen J) is that an appellant needs to demonstrate a material flaw in the assessment process in order to succeed. Merely to provide evidence by way of a conflicting professional opinion is not enough. I find that the medical evidence in this case does not show that Mr Smith does not have the physical capacity to work for 30 hours or more a week which was the medical decision required under the 1998 Act.


[27] In this appeal the medical reports are referred to for material that bears on the central question, that is to say whether the occupational assessor made a mistake. I have indicated that the material does not establish the ground of appeal, but in deference to the carefull argument by counsel it should be referred to.


[28] Dr Ruttenberg did an assessment on 27 December 2000 having seen Mr Smith and having been provided with a comprehensive record of prior medical reports. At that time, Mr Smith was employed at the golf driving range for 12 hours per week. The report shows that Mr Smith rated his pain as being 7 out of 10 in severity, where 10 represents the highest rating for pain. In his assessment, Dr Ruttenberg noted:

On talking to Mr Smith today, it became clear, that the limiting factor in his current employment, is a lack of increased work hours and work availability. He was quite open and honest, stating that were the hours to be there, he had little doubt, that he would be able to work 30 hours a week in his current role.


~9] Dr Ruttenberg recommended an exercise programme. That was done under the supervision of a physiotherapist, Ms Bronwyn Tuck. On 28 August 2001 Ms Tuck reported that Mr Smith's main problem which was pain in his left foot had reduced from 8/10 at worse to 3/10, that his right and left leg felt 30% stronger, that he was attending the gym two to three times per week, that he could now play 18 holes of golf before feeling very tired and that Mr Smith remained limited in his work capacity by how far he could walk and how long he could stand.


[30] In August 2001 Mr Hay reported that Mr Smith was concentrating on a "very full schedule of physical training including g~ three times a week, walking one to two hours a day, stretching and exercise on non-gym days, working 8:00 to 9:30 at the driving range and 18 holes of golf normally on a Sunday.


[31] Dr Kenny reported on 4 February 2002:


Given his moderately severe impairment in the left lower limb particularly, and the resulting disability in terms of mobility, it would not be appropriate for Mr Smith to undertake employment requiring lifting or carrying of more than light to moderate loads of small dimensions, prolonged or repeated bending, any crouching, squatting or kneeling, or any task requiring him to move over more than relatively short distances.

There is no injury-related reason why Mr Sinith could not undertake fulltime employment (or at least 35 hours per week) of a generally light to moderate physical nature (lifting up to 2kg regularly, 5kg occasionally), where he is able to alternate between sitting, standing or changing position as necessary, where he is located in a relatively static position, and where there is no requirement to negotiate stairs, or sloping or uneven ground.

Mr Smith would be best employed in a reasonably confined location (such as an office, work shop or within a vehicle), where his tasks are primarily sedentary (or at least involved moving only within small areas) and where the majority of his tasks involve upper body or upper limb movements and postures.

Mr Smith's role as a golf driving range assistant is entirely suitable, but it is very unlikely that any more than approximately 3 hours of work per day are available. If such employment was available, then I have no doubt that Mr Smith would be able to undertake such work on a full-time basis.

[32] Although Dr Kenny reported that Mr Smith said he had no experience in small engine repair, Dr Kenny found no injury related reason why he could not do that job.

[33] Mr Zindel for Mr Smith obtained a medical report of 14 August 2002 from Dr Barrie Tait who reported:

Mr Smith stated that his clinical status is worsening. He states he has constant pain in his feet, left hip and both ~ees and intermittent pain in the left lower back. Mr Smith stated that the feet and left hip pain are aggravated by bending, lifting, walking more than 5 kilometres, and relieved by rest, massage and exercise. Mr Smith stated that he exercises two hours a day and walks for 3 kilometres a day.

Mr Smith stated that his low back pain is brought on by lifting heavy weights. It tends to last for a day, is aggravated by walking and relieved by rest and exercise.


[34] Dr Tait said:

Dr. Kenny identified six job options which he considered Mr Smith would be able to undertake for at least thirty-five hours per week.

1. Golf driving range assistant

2. Groundsman

3. Caretaker

4. Courier driver

5. Small engine repairer

6. Photographic processor

In my opinion Mr Smith does not have the capacity to work for thirty-five hours a week in any of these occupations. This opinion is based on the information obtained at interview, the physical examination, and review of the provided documentations.


[35] Dr Tait did not express reasons why Mr Smith could not work as a small engine repairer because he accepted Mr Smith's explanation that he had no qualification for the job. He said:


It is my opinion that Mr Smith does not have the capacity to work for thirtyfive hours in any occupation in which he has appropriate training and experience. Mr Smith has limited work capacity - the limitation is the result of structural changes as a result of his accident, particularly of his left leg, and chronic pain also the result of his accident.
[36] Dr Tait had discounted the small engine repair job and did not give an opinion whether Mr Smith could work in that occupation.


[37] Dr Kenny then responded on 29 Febritary 2004 as follows, explaining the necessary modifications to the occupational assessor's opinion when making a medical assessment:

The training of an occupational physician includes development of an awareness of the physical characteristics and requirements of a wide range of occupational roles.

The job details sheet prepared by the Occupational Assessor necessarily describe all possible movements, loads, postures which may characterise such jobs, without recognising the widely diverse physical requirements between specific examples of such generic occupations.

It is for this reason that in such reports I stipulate the specific activity restrictions which relate to the impairments/disabilities of the person being assessed, before considering the proposed job options in terms of those restrictions.


And further

I recognise that there may be the need or opportunity in the Caretaker role, as in any most occupational roles, to occasionally perform squatting or crouching, but it is unlikely to be essential, and there would almost always be the option of completing the same task without such crouching or squatting if preferred, just as there will in the non-work environment.

I have no doubt that should he be motivated to do so, Mr Smith could perform a number of jobs satisfactorily despite his significant lower limb disability. This has been clearly demonstrated by his performing a range of full-time and part-time work of up to a moderately strenuous nature (and likely to have included intermittent squatting, crouching, bending, walking) in the period between 1986 and 2002.

I note Mr Snith's general practitioner having stated (Dr Neill - 21 Feb 01) that "I have no doubt that (Mr Smith) would be keen to pursue as much work as he is physically able, and clearly the number of hours that he could do is totally dependent on the type of work that he would be offered".

Decision


[38] As Mr Zindel quite properly acknowledged, the second opinion of Mr Tait did not identify any specific error in Mr Kenny's assessment. The report was obtained before the Ramsay judgment and My Zindel submitted that the expression of medical opinion at that time tended to be in the form of an opinion rather than a critique of a disputed opinion by another doctor.


[39] There has been a thread of contradiction in Mr Smith's own reporting. That may account in some measure for the different opinions reached by Dr Kenny and Dr Tait. There is no suggestion that Mr Smith has deliberately misrepresented his capacity. The reports indicate that he has been determined in building up his strength and endurance and has suffered a good deal of pain. But it has evidently been difficult for the assessors and other professionals to identify with any certainty the extent of his capacity to work.


[40] The central question however is whether the recommendation of small engine repairing was reached in error, or whether it is a job beyond Mr Smith's capacity to work 30 hours per week.

[41] I find that there is insufficient evidence to contradict Mr McCann's assessment, supported as it is by Mr Ward's view that Mr Smith is able to work as a small engine repairer. There is some interchange of the expressions "repairer" or "mechanic'" in the reports, but I am satisfied that the occupational assessors have addressed a job category that they have identified as suitable by reason of Mr Smith's experience, education, or training, or any combination of those things.


[42] After examining the information before the Court and hearing submissions of counsel I am unable to find a basis for reaching a different conclusion.

[43] In the event of such a finding, Mr Zindel has asked for an opportunity to obtain further medical information because there has been no specific medical discussion about Mr Smith's ability to do small engine repair work. However Mr Smith has been through the medical phase of work assessment process and Dr Kenny found that he did have the capacity. Dr Tait found that he did not. Dr Kenny later confirmed his original opinion. I do not think further medical investigation is justified. If there had been any reason why Mr Smith did not have the physical capacity to work on small engine repair it would have been mentioned in these thorough reports.

[44] In view of those findings the cross appeal does not require a decision. The appeal is dismissed. No order is made for costs.

Issued at Wellington on 6 September 2004 at 9:00 am

Judge D A Ongley District Court Judge
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#2 User is offline   doppelganger 

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Posted 09 February 2006 - 06:33 PM

this is just another case were there in the decision that says that there is a capacity to work. the claimant would not argue that fact, but he would argue that he can n't work for the 30 or more hours a week as the assessment says.

intresting that the reviewer says that the claimant can not carry on working at the golf course full time ( para 7) and this was the case in para 3.

take note that Ruttenberg and Kenny claim that the reason why he can not work full time is the hours that are availiable.

both of these people are wrong as again para 3 shows that there were more hours available

also note that there is no mention in the decision that the medical assessors say that the disputed job can be undertaken. but it is all explained in para 43.
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#3 User is offline   rippedoff 

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Posted 10 February 2006 - 09:20 AM

:D On a SIMILAR form of ACC CORRUPTION, can INNOCENTACCVICTIMS sue ACCSKUMM/FILTH like RUSSELL WORTH/Neurosurgeon, who ARE PAID by ACCFILTH to write DEGRADING & INCOMPETANT reports DEGRADING victims with head/brain injuries? B)

I had to go through the now Coroner( Gary Evans), which took about a year, and AFTER ACC WERE PROVEN TO BE THIEVING SKUMM, all THESE FILTH SAID WAS/IS, SORRY, WE MADE A MISTAKE! :huh:

Whose head do I SQUASH? :)
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#4 User is offline   vulcan 

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Posted 10 February 2006 - 07:05 PM

I'm a fairly new member of this forum, which helps
me so much - all I can suggest is that it would
depend which trade/profession you worked in.
Perhaps Sue Bradford or a good union sec would
give you the info, that was a coupla years after
Birch demolished the union movement? Cheers.
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