Ross v Accident Compensation Corporation
[2023] NZHC 1405
•7 June 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-562
[2023] NZHC 1405
UNDER the Accident Compensation Act 2001 IN THE MATTER
of an appeal to the High Court pursuant to s 162 of the Act
BETWEEN
EUPHEMIA ROSS
Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 17 May 2023 Counsel:
A M Brown for Appellant
S M Bisley and F L Becroft for Respondent
Judgment:
7 June 2023
JUDGMENT OF RADICH J
Introduction
[1] Euphemia Ross (Ms Ross) was granted cover by Accident Compensation Corporation (ACC) for an injury she suffered at work in 1997. Subsequently, in 2006, she was granted cover by ACC for mental injury suffered because of her physical injury.
[2] After obtaining vocational and medical assessments under the Accident Compensation Act 2001 (the Act), ACC decided in October 2014 that Ms Ross was
ROSS v ACCIDENT COMPENSATION CORPORATION [2023] NZHC 1405 [7 June 2023]
vocationally independent and, as a result, she lost her entitlement to weekly compensation under the Act.1
[3] The essential issue on appeal is whether, on the evidence that was available, the District Court erred in law when it upheld ACC’s decision.
[4] For Ms Ross, it is said that there was insufficient evidence – in an Edwards v Bairstow sense2 – for the District Court to uphold ACC’s 2014 decision that Ms Ross’ psychological or psychiatric issues had resolved sufficiently to enable the vocational independence finding to be made.
[5] ACC says that there was an evidential foundation for the conclusion that Ms Ross’ physiological and psychiatric injuries would not prevent her achieving vocational independence and that the District Court’s decision was tenable.
[6] Accordingly, the focus on the appeal is on that evidential foundation. Was it there? Or was it not there to such an extent that (to use the test this Court must apply) the only reasonable conclusion for the District Court would have been to allow the appeal?
Background
[7] The lengthy background to this appeal is set out in some detail in the District Court’s decision at [2]–[52]. What follows is a summary of that factual background.
[8] Ms Ross suffered an injury to her right wrist when lifting heavy boxes at work on 2 July 1997. She was granted cover and was certified to be unfit to work. Subsequently, her diagnosis changed to regional pain syndrome with no underlying injury.
[9] In June 2000, ACC suspended Ms Ross’ entitlements on the basis that her symptoms were no longer causally related to the injury for which she had cover. After
1 Accident Compensation Act 2001, ss 107 and 112.
2 Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 (HL) at 36. In other words, that, on the evidence, the only true and reasonable conclusion contradicts the determination.
appeals, the cover was reinstated alongside weekly compensation, hand therapy and home help.
[10] In February and March 2003, Ms Ross, at ACC’s direction, undertook an initial occupational assessment (IOA)3 which concluded that 11 identified types of work would be suitable for her and that she would benefit from vocational training. In an initial medical assessment (IMA)4 that followed in July 2003, it was concluded that Ms Ross had the capacity to undertake seven of the 11 types of work identified in the IOA. A vocational rehabilitation plan was created and Ms Ross was given vocational training.
[11]In 2004, Ms Ross sustained an ankle injury which disrupted her rehabilitation.
[12] In January 2006, a vocational independence occupational assessment (VIOA)5 identified 11 types of work that were said to be suitable for Ms Ross. However, the vocational independence process was put on hold as a subsequent vocational independence medical assessment (VIMA)6 concluded that a successful return to work would require Ms Ross to avoid repetitive clerical work and that Ms Ross was suffering from depression. Treatment and rehabilitation issues relating to a potential mental injury diagnosis were raised.
[13] In March 2006, Dr Davis, a psychiatrist, diagnosed Ms Ross with “a significant Chronic Pain Disorder and also a moderately severe Depressive Disorder” (mental injuries). She was granted cover for these disorders through ss 20 and 26(1)(c) of the Act.
[14] Throughout 2006 and 2007, Ms Ross undertook activity-based programmes and pain management counselling.
[15] In November 2007, Ms Ross was referred by ACC for a second VIOA. It identified 10 suitable types of work for Ms Ross, and found there to be no vocational
3 Accident Compensation Act, ss 89–92, 108 and sch 1, cl 25.
4 Sections 89, 93–96, 108 and sch 1, cl 28.
5 Section 108 and sch 1, cl 25.
6 Section 108 and sch 1, cl 28.
barriers to Ms Ross undertaking those types of work. However, a subsequent VIMA, completed in December by Dr Rajapaske – a rheumatologist – excluded all of the work types identified in the VIOA on the basis that Ms Ross was not able to work for 35 hours a week in any of the types of work that had been identified.
[16] Further pain management programmes were completed by Ms Ross between 2009 and 2010 and she undertook preparation programmes and training between 2011 and 2012.
[17] Following a work readiness report in December 2013, a third VIOA was completed in February 2014. It concluded that 15 types of work were suitable for Ms Ross. She was assessed as being vocationally independent for six of them. A third VIMA was undertaken for Ms Ross in March 2014 by Dr Michael Antoniadis, a specialist occupational physician. It was concluded in Dr Antoniadis’ report that Ms Ross had the capacity to work for 30 hours a week in sedentary or light employment and that she had the capacity to undertake three of the work types identified in the VIOA. In an update to that report, in July 2014, Dr Alexander concluded that six of the 15 work types were suitable.
[18] On 18 July 2014, ACC determined that Ms Ross was vocationally independent, having an ability to work for 30 hours or more a week in six identified types of work and that her weekly compensation would, as a consequence, stop from 17 October 2014. This is the decision that has given rise to these proceedings (the 2014 decision).
[19] In August 2014, Ms Ross applied to review the 2014 decision on the grounds that the medical assessment relied on by ACC did not meet the required standard in that it did not comply with the requirements in s 110(3)(a) of the Act – which provides that ACC must not require a claimant to participate in an assessment unless the claimant is likely to achieve vocational independence and has completed the vocational rehabilitation the corporation was liable to provide.
[20] In a decision on 3 February 2015, the reviewer upheld ACC’s determination.7 Ms Ross then, independently, consulted Dr Rajapaske who, in a report on 30 March
7 Ross v ACC Review No. 3102086, 3 February 2015.
2015, advised that there had been no substantial change in Ms Ross’ condition since 2007 and that, unless her ongoing pain and psychiatric issues were addressed, she remained unfit for VIMA clearance for a 30-hour per week role in any of the occupations that had been identified in the VIMA.
[21] ACC considered Dr Rajapaske’s 2015 report but declined to revisit the 2014 decision and so Ms Ross appealed to the District Court.
District Court decision
[22] No issue is taken by either party with the way in which the background to the issues is described in the 5 January 2021 decision of the District Court.8
[23] And Mr Bisley is right to say that the District Court Judge was considering a broader range of issues than is the case on this appeal. As was said in the decision:9
The main decision to be decided is whether the Corporation’s decision that Ms Ross is vocationally independent (with the result that weekly compensation for her personal injury ceased) was flawed either in process or in substance.
[24] A number of issues were raised – both procedural and factual – in support of that submission.10 One of the points raised by Ms Ross related to the currency of her IOA and IMA. She argued that there was a failure to update her psychological profile. On this point, the Judge said:
[67] Ms Ross’ psychological/psychiatric profile was repeatedly updated between 2003 and 2014. During this period, Ms Ross was carefully monitored by the Corporation, in light of the rehabilitation that she received. She was referred for repeated psychiatric and psychological assessments, to an occupational specialist, the Pain Clinic, a physiotherapist, a pain consultant and an occupational consultant.
[25] Ms Ross submitted that the original vocational independence assessments in 2003 were wrong because she is not capable of working from either a vocational or physical perspective. She relied on Dr Rajapakse’s report of 30 March 2015 which
8 Ross v ACC [2021] NZACC 4 (DC) [District Court decision]. The District Court decision granted leave to Ms Ross to appeal out of time: at [62].
9 At [63].
10 As summarised in [68].
questioned whether there was any real change in her condition since 2007.11 The Judge referred to the third VIOA in 2014 conducted by Dr Antoniadis. He compared this report with that of Dr Rajapakse and said:
[73] Dr Rajapakse’s uniformly bleak report stands in contrast to the more fully considered, nuanced and balanced report of Dr Antoniadis. In relation to Ms Ross’ pain, it is acknowledged that her rehabilitation has not cured her fully or made her pain go away. However, from 2006, she received appropriate pain management counselling and education, medication, and assistance from the Pain Clinic, a physiotherapist and an osteopath. She and health professionals noticed some improvement in her condition. The fact that she has pain does not necessarily mean that she is incapable of appropriate work, in particular, work that avoids aggravating postures. The job options identified are entry level, are not cognitively demanding, and allow for postural variation, and there is added assistance of voice-activated software in clerical roles.
[26] The District Court Judge found no flaw in the process and substance of ACC’s decision – which was based on Dr Antoniadis’ report – that Ms Ross was vocationally independent.12
[27] Subsequently, the District Court declined Ms Ross’ application for leave to appeal the decision on the basis that an arguable error of law had not been raised.13
High Court leave decision
[28] On 14 March 2022, Ellis J granted Ms Ross leave to appeal from the District Court decision. The ground on which leave was granted arose out of, but differed from, the grounds for leave that were advanced.14
[29] Ellis J found that the appeal point was whether, in assessing Ms Ross’ readiness to return to full-time employment, there had been any consideration of whether her psychological state had improved sufficiently to permit this to occur.15 Arising from that question, Ellis J accepted that there was an arguable point of law in the Edwards v Bairstow sense,16 namely whether there was any evidence before ACC (or the
11 At [68].
12 At [75].
13 Ross v ACC [2021] NZACC 145 (DC).
14 Ross v Accident Compensation Corporation [2022] NZHC 448 [Special leave decision] at [55] for the grounds advanced and at [68]–[73] for the ground approved.
15 At [68].
16 Edwards (Inspector of Taxes) v Bairstow above, n 3, at [36].
District Court) that was capable of supporting the determination that Ms Ross’ psychological/psychiatric issue (which in 2007 had been identified, and accepted by ACC, as being an impediment to Ms Ross’ return to full-time work) had been resolved.17
[30] As is said for ACC, it was not so much a matter of whether or not those issues had been “resolved”, as Ellis J had put it, but whether the District Court was able, on the evidence before it, to determine that Ms Ross’ mental injuries did not preclude her undertaking 30 hours of work per week in a job type identified in the relevant vocational independence assessment.
[31]Ellis J framed the questions on appeal in the following way:
[72] The application for special leave to appeal is granted, in part. The approved questions are:
Was there evidence available to ACC in 2014 or the District Court in 2021 that Ms Ross’ depressive disorder had materially improved since 2007?
If not, did the District Court err in law (in the Edwards v Bairstow sense) when it upheld ACC’s 2014 decision that Ms Ross had vocational independence?
[73] I acknowledge that the first of these questions is not a question of law. Rather, I pose it as a prequel to the second in case, despite my best endeavours, I have missed something in the considerable amount of paper that was before me.
[32] Again for ACC it is said, with reference to Ellis J’s first question, that it is not so much a question of whether Ms Ross’ disorder had “improved”, but whether there was evidence available to enable a finding that Ms Ross’ mental injuries did not preclude her from undertaking 30 hours of work per week in an identified job type. I accept the point and proceed on that basis.
17 Special leave decision, above n 14, at [69].
Legal framework
[33] The relevant statutory provisions and the approach to be taken on appeal are not in dispute but I refer to the relevant provisions and principles here to place the decision in context.
[34] The Accident Compensation Act provides cover for personal injury, including mental injury stemming from personal injury, suffered in New Zealand.18
Vocational rehabilitation
[35] Under s 75 of the Act, ACC must within 13 weeks of accepting a claim for cover determine whether the claimant is likely to need vocational rehabilitation after the end of the 13-week period. If so, ACC is required to prepare an individual rehabilitation plan in consultation with the claimant. The purpose of vocational rehabilitation is to help the claimant (as appropriate) maintain employment, or obtain employment, or regain or acquire “vocational independence”.19 ACC is liable to provide vocational rehabilitation to a claimant who has suffered personal injury for which he or she has cover and is entitled to weekly compensation.20 The claimant’s vocational rehabilitation needs are assessed in accordance with s 89, which requires:
(a)an initial occupational assessment to identify the types of work that may be appropriate for the claimant; and
(b)an initial medical assessment to determine whether the types of work identified under paragraph (a) are, or are likely to be, medically sustainable for the claimant.
[36] The occupational assessor and the medical assessor, who conduct these assessments, must each prepare and provide ACC with reports in accordance with the schemes described in ss 90 to 96 of the Act.
18 Accident Compensation Act, s 20.
19 Section 80.
20 Section 85.
Weekly compensation and vocational independence
[37] If a personal injury is suffered, a claimant may receive weekly compensation.21 A claimant’s entitlement to weekly compensation depends on his or her capacity for employment and “vocational independence”.22
[38] “Vocational independence” is determined through the application of ss 107 to 110 and cls 24 to 29 of Schedule 1 of the Act. The purpose of a vocational independence assessment is to ensure that vocational rehabilitation has been completed and has enabled the claimant to maintain or obtain employment or regain or acquire vocational independence.23
[39] The assessment consists of an occupational assessment under cl 25 of Schedule 1 and a medical assessment under cl 28 of Schedule 1.24 The purpose of the occupational assessment is to:25
(a)consider the progress and outcomes of vocational rehabilitation carried out under the claimant’s individual rehabilitation plan; and
(b)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.
[40] The purpose of the medical assessment is to provide ACC with an opinion as to whether, having regard to the claimant’s personal injury, he or she has the capacity to undertake any type of work identified in the occupational assessment and reflected in the claimant’s individual rehabilitation plan.26 Under cl 29(1)(a) of Schedule 1, a medical assessor’s report should specify the relevant details about the claimant, including details of the claimant’s injury.
21 The claimant is compensated for loss of earnings, loss of potential earning capacity, and compensation for the spouse or partner, child, or other dependant of a deceased claimant: Section 6 (definition of “weekly compensation”).
22 Section 100.
23 Section 107(3).
24 Section 108.
25 Section 108(2).
26 Section 108(3).
[41] On the basis of those assessment reports, ACC is to determine under s 107 if a claimant has vocational independence. Vocational independence is defined as the claimant’s capacity, as determined under s 107, to engage in work:27
(a)for which he or she is suited by reason of experience, education, or training, or any combination of those things; and
(b)for 30 hours or more a week.
[42] As Mr Bisley has said, referring to Ramsay v Accident Compensation Corporation, there are only limited circumstances in which ACC could go behind a medical assessor’s assessment.28 In this way, the assessment can be seen as being a central part of ACC’s s 107 decision. But, as Ronald Young J said in Martin v Accident Compensation Corporation, the Ramsay factors are relevant only to the ACC’s decision making and not to the District Court’s appeal by way of rehearing.29
[43] If it is determined that a claimant has vocational independence, then the claimant is treated as no longer having incapacity for employment under s 103, or as able to engage in suitable work under s 105, and so loses their entitlement to weekly compensation three months after the date of notice of the determination.30
[44] If a claimant no longer has vocational independence, then he or she regains his or her entitlement to compensation from the date of the determination or an earlier date as determined by ACC at a rate specified in s 113.
[45] ACC may assess vocational independence at such reasonable intervals as it considers appropriate.31 However, ACC cannot require a claimant to participate in a vocational assessment unless the claimant is likely to achieve vocational independence and vocational rehabilitation is completed.32
27 Section 6 (definition of “vocational independence”).
28 Ramsay v Accident Compensation Corporation [2004] NZAR 1 (HC).
29 Martin v Accident Compensation Corporation [2009] 3 NZLR 701 (HC) at [32].
30 Accident Compensation Act, ss 111 and 112.
31 Section 109(1).
32 Section 110(3).
Approach to appeal and legal issue
[46] In this further appeal on a question of law under s 162 of the Act, the Court may only consider errors of law. As was said in Tohu v Accident Compensation Corporation:33
the Appeal Court’s function is not general correction of error. Rather, it is to clarify the law and determine whether it has been properly interpreted and applied by the Court below. Theoretically, a wholly factual issue could found a second appeal but in Waller v Hider the Court of Appeal emphasised that the circumstances would have to be fairly unusual to justify granting leave.
[47] An error of law will exist if the District Court misinterpreted – and so misdirected itself on – the law; overlooked a relevant matter or considered an irrelevant matter; or reached a conclusion that was so untenable that proper application of the law requires a different answer.34
[48] We are concerned here with the third type of error mentioned above. It is often referred to as an Edwards v Bairstow error. A factual finding may give rise to an error of law where there is no evidence to support the determination; the evidence is inconsistent with and contradicts the determination; and where the true and only reasonable conclusion contradicts the determination. In Bryson v Three Foot Six Ltd, the Supreme Court affirmed the decision of the House of Lords in Edwards that an unsupported finding of fact may be reviewable as an error of law.35
[49] It is in this context that the issue on appeal is to be considered: Did the District Court err when it found that there was some evidence in 2014 to support a finding that Ms Ross’ mental injuries did not preclude her from undertaking 30 hours of work per week in an identified work type? Was there some information, sufficiently current at the time of Dr Antoniadis’ 2014 report, to enable the District Court to make that finding? And did Dr Antoniadis take Ms Ross’ mental injuries into account at all when he assessed her ability to take on certain work types, such as to enable the District Court’s conclusion?
33 Tohu v Accident Compensation Corporation HC Auckland CIV-2003-404-4869, 12 November 2003 at [13] (citation omitted).
34 Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138 at [51] and [52]; and
Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]–[27].
35 Bryson v Three Foot Six Ltd, above n 34.
Parties’ positions
[50] For Ms Ross it is said that it was not open to the District Court, on the evidence before it, to conclude that Ms Ross’ psychiatric injuries did not preclude her from undertaking 30 hours of work per week in an identified work type. It is said that Dr Antoniadis, on whose report the District Court relied, failed to say why the mental injuries were was no longer a barrier to vocational independence. And it is said that, in any event, there was no current information on that topic on which the assessor could have relied because the most recent information was in 2011 at which time Ms Ross’ psychiatric injuries were a barrier to her vocational independence.
[51] For ACC it is said that this is fundamentally a factual appeal. Ms Ross must show an error that leads the Court to conclude that the judgment was so clearly untenable that the proper application of the law requires a different answer. It says the District Court Judge’s conclusions were not untenable. The Judge was only obliged to conclude that Ms Ross’ psychiatric injuries did not prevent her from returning to 30 hours of suitable work per week; evidence was available to enable that conclusion and the Judge was entitled to give Dr Rajapakse’s evidence less weight than the other available evidence.
This appeal
[52] Because ACC’s 2014 decision and, in turn, the decision of the District Court, were based upon Dr Antoniadis’ 2014 assessment report, that report – its approach and the information Dr Antoniadis had from which to draw its conclusions – is central to the issue on appeal.
[53] The purpose of a medical assessment is to provide an opinion for ACC on 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.36 To meet this purpose, a medical assessment report is required to contain:37
(a)relevant details about the claimant, including details of the claimant’s injury; and
36 Accident Compensation Act, s 108(3).
37 Schedule 1, cl 29.
(b)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
(c)the results of any additional assessments of the claimant’s condition; and
(d)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
(e)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.
[54] As mentioned previously, personal injury includes any “mental injury suffered by a person because of physical injuries suffered by the person”.38 Mental injury is defined as “a clinically significant behavioural, cognitive or psychological dysfunction”.39 Ms Ross’ cover is based, separately, upon her physical injury and her mental injuries. As described in [13], the mental injuries are a chronic pain disorder and a depressive disorder.
[55] The medical assessor must, in circumstances such as these, explain clearly why both injuries – the physical and the mental injuries – do or do not preclude a claimant from undertaking 30 hours of work per week in some work identified in the vocational assessment. I accept the point made by Ms Brown that it is not enough for relevant injuries, for which there is cover, to be mentioned in the medical assessment report. It must be demonstrated that the medical assessor took both relevant injuries into account in making an assessment of the ability to undertake the work types in issue. Where an assessment does not do that, then the purpose of s 108(3) cannot be fulfilled.
[56] This point is supported by a number of authorities to which the Court was referred by the appellant. It is said for ACC that these cases are not on all fours with the position here because they were appeals that proceeded on issues relating to whether or not, in undertaking vocational assessments, ACC had complied with the relevant statutory provisions, substantially or procedurally. However, although the issues in those cases differ from the issues in this case – which is at the second level
38 Section 26(1)(c).
39 Section 27.
of appeal – they do make the point that a medical assessment must, if there is more than one covered injury, adequately address each injury for which there is cover and the ways in which each injury impacts a claimant’s ability to work beyond the 30 hour threshold.40 To take one example, the District Court in Corrin v ACC expressed the point in the following way:41
[19] In this present case, I find that the whole tenor of Dr Nicholson’s assessment is that of an assessment which is considering the appellant’s injuries suffered in the two accidents of 1986, and has had no regard whatsoever for the eye injury of 2000. The eye injury is simply noted as being part of the appellant’s “past medical history” along with his appendectomy and hernia, and its mention in that category, I find, is wholly indicative of the fact that it played no part in Dr Nicholson’s assessment.
…
[23] In that case, [Millane] I noted that the definition of a capacity for work must include a requirement to have regard to the consequences of all injuries for which a person has cover under the Act and which may affect his ability to engage in any particular form of employment. That finding holds true even though the concept has changed from “capacity to work” to “vocational independence”.
[57] Stemming from that, the issue here is whether there is any evidential foundation in Dr Antoniadis’ report to enable it to be safely said that he had relevant information on Ms Ross’ mental injuries in mind when he drew his conclusions.
[58] In order to address the issue, it is necessary to consider in a little detail the terms of Dr Antoniadis’ reports and his assessment of Ms Ross’ mental injuries.
[59] The March 2014 report gave a relatively detailed description of Ms Ross’s history of injury, including references to a report from Dr Mark Davis, a consultant psychiatrist, in 2016 which referred to Ms Ross having a “major depressive disorder” caused by the 1997 injury. It referred to further reviews from Dr Davis in May and September 2006, noting some improvement in Ms Ross’ mood but a need for her to continue on medication. The report referred to input from Fran Hurnen, a registered psychologist, in 2007, to involvement from Dr Davis again in 2009 (which reported
40 See for example Millane v ACC [2004] NZACC 87 (DC) at [18]; Coulter v ACC [2004] NZACC 405 (DC) at [8]–[9]; Corrin v ACC [2008] NZACC 272 (DC) at [23]; Nortman v ACC [2010] NZACC 81 (DC) at [21]; Dawson v ACC [2012] NZACC 220 (DC) at [63]; Haworth v ACC [2014] NZACC 84 (DC) at [60] and [62]; and Hodson v ACC [2015] NZACC 49 (DC) at [36].
41 Above, n 40.
ongoing symptoms of major depressive disorder albeit there had been some improvement) and from Roz Walker, a clinical psychologist, who provided cognitive behavioural therapy from around September 2010 until the latter part of 2011.
[60] Dr Antoniadis referred to Ms Ross’ (then) most recent ACC medical certificate from her general practitioner in which it was said that Ms Ross “is physically capable of light work, up to four hours a day, four days a week at first but I am not sure that she is mentally prepared to take this step.”
[61] In recounting his interview with Ms Ross, Dr Antoniadis referred to Ms Ross as having described her mood as being “just okay” and to her saying that she felt “worthless”. Reference was made to Ms Ross’ father having died five months before the report was written and to Ms Ross describing herself as having a “nervous breakdown”. He observed that she remained on medication.
[62] The “Examination” section of the report recorded Dr Antoniadis’ findings on Ms Ross’ range of movement but no findings were made on her mental injuries. In the “Opinion ” section it is said:
She has developed a secondary mental illness diagnosed as a major depressive disorder as well as a pain disorder after psychiatric evaluation with Dr Mark Davis in 2006.
Ms Ross has had extensive psychological input and guidance and has had physical rehabilitation through Activity-based Programmes the last of which was approximately seven years ago.
Her dose of antidepressant is stable. …
There are noted psychosocial stressors associated with the recent passing of her two parents and also her description of now being estranged from her sister.
…
In my opinion, Ms Ross does not require any further medical investigation or intervention. She is not likely to benefit from further psychological input as has been identified by Roz Walker in her last review in October 2011 …
[63] Dr Antoniadis said, in this part of the report, that Ms Ross’ “condition continues to be: non-specific right upper extremity pain”. Mention is not made here of mental injury or issues.
[64] Dr Antoniadis then went on to find that Ms Ross was capable of undertaking three of the 15 types of work that had been identified in the vocational assessment. Reasons are given, in relation to each work type, for the conclusions on whether it is suitable or sustainable for Ms Ross. None of the reasoning – for work types that are supported or not supported – refers to Ms Ross’ mental injuries and why they contribute to the conclusion one way or the other. In each case, the focus is on physical constraints.
[65] Mr Bisley makes the point that in the earlier parts of the report reference is made to Ms Ross’ mental injuries and that it can properly be assumed, therefore, that Dr Antoniadis was factoring those injuries into his reasoning on the suitability of each type of work for Ms Ross. I do not believe that to be a conclusion that is open to be drawn. Dr Antoniadis’ description of Ms Ross’ issues with depression proceeds on the basis that there have been improvements but that there was nothing more to be done. But the last piece of information from someone with the credentials to make a mental health assessment was Ms Walker’s 2011 report which showed the mental health issues to be unresolved. There was nothing further. Yet it is said that Dr Antoniadis did take the mental injuries into account when assessing suitable work types. First, in order for him to do that, there would need to be some relatively recent information and, secondly, it is just not apparent that Dr Antoniadis has considered the mental injuries one way or another in drawing his conclusions.
[66] In July 2014, Dr Antoniadis provided an updated report. The report is in much the same terms as the March report. It appears to have been prepared using the March report as a template. But, in places, adjustments to terminology were made. Dr Antoniadis added to the background section: “Her mood is stable. She has longstanding problems with depression as identified by Dr Davis. There are no active depressive symptoms. There was no question of suicidal plans or ideation.” The “Opinion” section included much the same content as that to which I have referred in [62]. One change to the wording there was an adjustment to the sentence which, in the March report, read “She is not likely to benefit from further psychological input
…” to “She does not require any further psychological input …”. In this way, it could be said that Dr Antoniadis had “firmed up” on his comments on the need for psychological input. Or, it could be, as Mr Bisley has said, that Dr Antoniadis was
writing or dictating from the terms of the March document without intending to make any material change. In either case, the point made for Ms Ross is that there was no sufficiently recent evidence from someone with the requisite skill on Ms Ross’ psychological condition to enable conclusions of that sort to be made.
[67] Dr Antoniadis again went on to reconsider the occupational roles that had been identified for Ms Ross and concluded that work as a general clerk, a receptionist, an inquiry clerk, and as a sales assistant in several areas would be medically suitable “when considering her covered injury and residual and chronic persistent right-arm pain”.
Evidence on Ms Ross’ psychiatric or psychological condition
[68]What evidence was there, in 2014, on Ms Ross’ mental injuries?
[69] A series of psychiatric and psychological reviews for Ms Ross were conducted between May 2006 and October 2011. A summary of the primary reports that were produced is as follows:
(a)9 March 2006: Dr Davis, a psychiatrist, made the diagnosis referred to in [13] above. Psychological factors associated with the pain disorder were described as “chronic” and the depressive disorder was described as “severe”.
(b)23 May 2006: Dr Davis said that his overall impression was that Ms Ross had “improved somewhat in terms of mood” but that “[t]here is no doubt there are still many issues related to her depression and her pain disorder remaining”. He said that increasing antidepressant medication and continuing psychological sessions would be likely to improve her condition.
(c)15 August 2006: Ms Hurnen, a registered psychologist, said that “it was not until the final 3–4 sessions that Ms Ross began to accept her pain situation and the need to change her perception”. It was said that the realisation that Ms Ross had to take control of her own situation
“happened towards that end of [their] time and [Ms Hurnen did not] believe that it [had] solidified enough for it to have major flow-on effects in her practical life or emotional life”. Results from testing showed increased anxiety but improvements with depression.
(d)8 September 2006: Ms Brinn, a registered clinical psychologist, reported that Ms Ross presented as clinically depressed, describing low mood, exhaustion, poor sleep, anhedonia and poor concentration. The presentation was supported by tests conducted. She had, it was said, described occasionally having suicidal thoughts but no plan.
(e)12 September 2006: Dr Davis reported an improved mood with a higher dose of medication but times of flat mood. Ms Ross was, it was said, still coming to terms with her pain condition.
(f)18 October 2006: Mr Thomas, a special anaesthetist and a consultant in pain management, recorded a diagnosis of depression and recommended anti-depressant medication.
(g)5 July 2007: Dr Christian, an occupational medicine specialist, noted that Ms Ross had developed a significant problem with depression, rated as severe by Dr Davis and agreed that Ms Ross’ “current mental health difficulties are due to the effects of this ongoing chronic pain problem.”
(h)12 September 2007: Ms Hernan prepared an end of pain management counselling report suggesting that Ms Ross had made more significant gains and was heading in a positive direction.
(i)10 December 2007: Dr Rajapakse, a consultant rheumatologist, in the 2007 VIOA referred to in [15] above, found Ms Ross to have ongoing depression and concluded that she “would not be suitable to carry out a 35-hour work week”. It would, he said, be “futile” to attempt that. I pause here to depart from the narrative for a moment to say that ACC
has, in this proceeding, expressed some concern with this report. As is noted in its opening paragraphs Dr Rajapakse, in preparing this report, only had the occupational assessment report available to him. He did not have any medical reports – although he did access Dr Davis’ 9 March 2006 report (referred to at subparagraph (a) above) and an earlier medical report through Ms Ross’ advocate. And ACC has observed that Dr Rajapaske’s interview with Ms Ross was shorter than those conducted by Dr Antoniadis. However, it is not the role of this Court to weigh this evidence against, or to compare it with, the evidence of other experts. It is to acknowledge its presence, its conclusions and the fact that ACC acted on it. It is to ask – with this and other evidence on Ms Ross’ personal injuries in mind – whether there was any up-to- date information on the effects of those injuries when Dr Antoniadis completed his 2014 assessment.
(j)8 October 2009: Dr Davis observed that Ms Ross continued to present with symptoms of a major depressive disorder although, he said, there was a clear indication of clinical improvement. He went on to say that there were still significant symptoms requiring further treatment to attempt to improve her mood disorder further and recommended that a work assessment be undertaken after further treatment for pain and depression. Referring back to his 9 March 2006 report, he concluded that she continued to fulfil the criteria for the diagnosis referred to there, together with an ongoing “major depressive order (chronic)”. This was the last word from a psychiatrist on Ms Ross’ mental injuries when Dr Antoniadis undertook the March 2014 VIMA.
(k)13 September 2010: Rosalind Walker, a psychologist, began pain management psychological services with Ms Ross who self-reported continuing to feel low every day and rating her mood at 2/10. She had a depression score increase, poor concentration, was sleep-impaired and reported a lack of understanding about her pain.
(l)31 December 2010: Ms Walker prepared a progress report. She noted that Ms Ross had a longstanding problem and her management style and mood were “well entrenched”.
(m)18 March 2011: Ms Walker provided a completion report for Ms Ross’ Pain Management Psychological Services. She noted that Ms Ross’ anxiety and depression measures were essentially unaltered and that she struggled to implement strategies consistently. It was said that Ms Ross’ barriers to making progress remained her ongoing depression and anxiety.
(n)20 June 2011: Ms Walker noted a shift in Ms Ross’ expression of hopelessness but commented that her mood continued to fluctuate.
(o)3 October 2011: Ms Walker recorded that there had “not been any major change in Euphemia’s presentation” but that she had made a shift in her level of acceptance and managing her activities. Additional psychological sessions would, it was said, be unlikely to lead to any more significant change at that time. Testing indicated an ongoing moderate level of depression and anxiety.
(p)25 March 2014: An ACC Medical Certificate of Ms Ross’ general practitioner, Dr Maes, recorded Ms Ross’ personal injury, including her depression. Under “work capacity” he said that Ms Ross is “physically capable of light work, up to 4 hours a day 4 days a week at first, but I am not sure that she is mentally prepared to take this step”.
[70] Ms Ross has placed some reliance upon a second report of Dr Rajapakse following a private consultation with him in March 2015. The report is dated 30 March 2015 and was written following a 45-minute consultation with Ms Ross. Dr Rajapakse noted a major depressive disorder on Ms Ross’ part with poor outcomes from relevant tests. The diagnosis includes, it was said, “serious symptoms such as suicidal ideation, severe obsession rituals and serious impairment in social and occupational functioning, failure to keep a job/cannot work”.
[71] Dr Rajapakse addressed two points. The first was whether it could be said that Ms Ross was vocationally independent. He made reference to Dr Davis’ October 2009 report (addressed above) and to the reports from Ms Walker (addressed above). He concluded that there had been no substantial change in Ms Ross’ condition since he saw her in 2007. His conclusion on this point was that Ms Ross could not be regarded as being vocationally independent.
[72] The second point addressed by Dr Rajapakse was whether it could safely be said that Ms Ross’ mental injuries were no longer a barrier to her being declared fit for employment, given the absence of recent testing. He concluded that it could not. His final comment was this:
The reality is that unless the ongoing pain issues and the patient’s psychiatric issues are addressed, she will remain unfit for VIMA clearance for a 30 hour work role in any of the occupations identified above.
Analysis
[73] It is not for this Court to critique, or to engage in any substantive way with, the expert reports that are in evidence. The weight to be attributed to any of the evidence, or its comparative sufficiency, does not fall for consideration here. It cannot endeavour to reconcile strands of evidence from Dr Davis, Ms Hurnen, Ms Walker, Dr Antoniadis and Dr Rajapakse. Rather, the Court’s lens is on the District Court decision: When it made the decision, was there any recent evidence (that is, beyond 2011) upon which it could have relied to determine as it did that Ms Ross’ mental injuries did not prevent her from undertaking 30 hours of work per week in jobs that had been identified in her VIOA?
[74] While, at [71] the District Court Judge referred to Dr Antoniadis’ July 2014 report as having “explicitly addressed Ms Ross’ pain and diagnosis of major depressive disorder”, the reality was that when job types in the VIOA were considered, one by one, the depressive disorder was not addressed at all. Dr Antoniadis explained why, in the case of each job type her chronic upper limb pain would or would not have prevented her from working at the job for 30 hours a week or more, the mental injuries were not factored into the equations.
[75] Dr Antoniadis referred to the mental injuries in the background sections in his 2014 reports but, when it came to assessing the job options he was required to consider, he considered only any persisting pain from Ms Ross’ physical injuries.
[76] But in any event, the overriding point is that there was no information from a psychiatrist or a psychologist since 2011 that would have enabled Dr Antoniadis (an occupational physician) to have concluded in 2014 – or the District Court Judge to have agreed in 2021 – that Ms Ross’ mental injuries did not prevent her from working in the areas that had been identified for 30 hours a week or more.
[77] As at October 2011, the expert evidence showed Ms Ross to have mental injuries. Expert evidence on the injuries was to some degree variable during that period the injuries were described at different times as being severe, improving, preventing Ms Ross from working, as major disorders and as fluctuating. While, as ACC says, there was content in places in the reports observing improvements, their terms were not consistent. But what is sufficiently clear in my view is that they did not come close to suggesting that her mental injuries would enable her to undertake 30 hours of work per week in job types that had been identified for her, or otherwise.
[78] Dr Antoniadis’ conclusion, referred to in [66] above, that Ms Ross was not likely to benefit from further psychological input is, as I see it, to miss the point. As Ms Brown said, the benefit to be gained from treatment for the mental injuries and the effect of the mental injuries on vocational rehabilitation are different things.
[79] Whatever the views on the nature or quality of the evidence, there was quite simply a significant information gap. The only reasonable conclusion on the lack of evidence on this central issue contradicts the District Court’s decision in the sense described in Edwards v Bairstow.42
[80] This is a case that turns on its particular facts. There were no facts to support the District Court’s finding, based upon Dr Antoniadis’ reports, that Ms Ross could be regarded as being vocationally independent on the basis described in [32] above.
42 Edwards v Bairstow, above, n 2.
[81]Accordingly, the answers to the questions of law are as follows:
(a)Was there evidence available to ACC in 2014 that Ms Ross’ depressive disorder had materially improved since 2007 (in the sense I have described in [32])?
No.
(b)If not, did the District Court err (in the Edwards v Bairstow sense) when it upheld ACC’s 2014 decision that Ms Ross had vocational independence?
Yes.
Result
[82]The appeal is allowed.
[83] If costs are sought and cannot be resolved between the parties, then the appellant may, within 10 working days from the date of this decision, file a memorandum and the respondent may, within a further 10 working days, file a memorandum in response. Any such memoranda should be limited to five pages in length.
Radich J
Solicitors:
John Miller Law, Wellington for Appellant Medico Law, Auckland for Respondent
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