Accident Rehabilitation and Compensation Insurance Corporation v Te Awa

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 184 /98 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act DCA 365/97 Appellant AND GEORGINA TE AWA Respondent HEARD on the 6th day of August 1998 APPEARANCES: Mr JD Palmer for appellant Miss G Te Awa in person RESERVED JUDGMENT OF JUDGE MJ BEATTIE The issue in this appeal is whether the Review Officer was correct to rule that the respondent still suffered incapacity as a consequence of personal injury by accident. 2 BACKGROUND On 22 July 1990 the respondent suffered a lumbar strain whilst playing rugby. At the time of this accident she was employed as a trainee wood carver on a marae. The respondent has been in receipt of weekly compensation from the time of her accident down until 1 September 1997 when the Corporation made a decision to cancel same following a multi disciplinary review undertaken by it of her case. For the purposes of that review the Corporation obtained reports from the following persons: Mr Jeremy Jones, Rheumatologist Mr John Sullivan, Orthopaedic Surgeon Ms Fay Foreman, Clinical Psychologist Muriel Leadley, Occupational Therapist Ross Jones, Careers Consultant Mr Sullivan stated that the only diagnosis was that of a degenerative lumbar spinal disease. On examination Mr Sullivan stated that Ms Te Awa was grossly overweight and concluded that there was unlikely to be any singular remedial treatment that would make a significant difference to Ms Te Awa's condition other than weight reduction. Ms Te Awa advised Mr Jones that there was a problem in the joints of the back and in the disc which was worn with some arthritis. Mr Jones provided a diagnosis of mechanical back pain, and noted that Ms Te Awa was able to do a substantial amount of gym work. Mr Jones concluded that Ms Te Awa's level of permanent impairment as relating to her injury was 0%, and recommended that the Corporation continue its support for a fixed period only. 3 Ms Foreman stated that Ms Te Awa had a major weight problem and that she had developed fear-avoidance behaviour. Ms Leadley stated that when working on the marae, Ms Te Awa was unable to carve at low levels after her injury, but if the carving was up on a table she said it was not a problem. With regard to fitness for work, Ms Leadley concluded that Ms Te Awa was overweight, deconditioned, had a disrupted sleeping pattern, and limited pain management strategies. It was recommended that Ms Te Awa would benefit from losing weight, and increasing cardiovascular exercise. Ms Leadley conducted a comprehensive functional limitations profile assessment. With regard to 'Locomotion', all activities except running were able to be fully performed. With regard to 'Body Postures', all postures were either able to be performed, with bending and rotating being restricted. With regard to bending, Ms Leadley stated that Ms Te Awa was unable to bend forward not because of her back, but because of her weight. With regard to 'Activity Tolerance', all tasks were either fully able to be performed, or able to be performed with restrictions. With regard to "Dexterity", which included the ability to use hands and feet in controlled movements requiring co-ordination, Mr Te Awa was fully able to perform all tasks. With regard to 'Manual Handling', all tasks were able to be performed except non-optimal manual handling. Mr Ross Jones stated that an increase in Ms Te Awa's level of fitness would be worthwhile to increase her work readiness and ability to sustain full time work. 4 The respondent sought a review of the decision to cancel her entitlements and the review hearing took place on 10 September 1997. In her decision the Review Officer considered that the appellant, the Corporation, had not discharged the onus of proof on it that Ms Te Awa was able to return to her pre-injury employment. Furthermore, she ruled that there was not sufficient evidence that the effects of her injury were spent and that her present disability was caused wholly or substantially by degenerative changes. For those reasons the Review Officer revoked the Corporation's decision to cease her entitlements and the respondent's entitlement were thereupon reinstated. It is against that decision which the Corporation now appeals. For the purposes of this appeal the Corporation sought and obtained leave to introduce further evidence namely, a further orthopaedic report from Mr D E Allen and a functional and employment assessment from Ergoworks, Occupational Therapy and Ergonomics Consultants. That employment assessment report addresses the issue which the Review Officer considered had not been sufficiently addressed by the review team and that report states: "In relation to her pre-injury job as a trainee wood carver, it would appear feasible based on my observation, for Georgina to physically be able to resume less tasks, however, she would need to learn to modify some of her postures and work techniques." Mr Allen's report of 30 May 1998 addressed certain questions put to him by the Corporation and his report states as follows: 5 "YOUR QUESTIONS: 1. Could you please comment on the degree of incapacity Georgina has now" - Miss Te Awa experiences:- A. Constant low left sided back discomfort. B. Intermittent left thigh discomfort. C. On examination Miss Te Awa is quite tender to light touch and palpation over the left sacro-iliac area. D. On examination Miss Te Awa has a marked restriction of lumbar spine movement. E. X-rays demonstrate lumbar spine degenerative change, and clinically there is evidence of retro-patella degenerative change both knees. F. Miss Te Awa weighs 144 kg. The degree of degenerative change would explain a tendency for Miss Te Awa to experience low back stiffness and discomfort. I cannot explain, in orthopaedic surgical terms, the cause of the intermittent discomfort in the left thigh, nor the marked tenderness over the left low back, nor the marked degree of lumbar stiffness. There is no clinical evidence of nerve root involvement, and no clinical evidence of any specific inflammatory process. In my opinion the symptoms and signs do not appear to reasonably correlate with the radio-logical findings. 6 If the question of back pathology additional to the degenerative change was to be pursued, then investigation of choice would be scanning - Te. Scanning to exclude the possibility of some specific inflammatory process, although clinically there is no evidence of this, and either C.T. scanning or M.R.I. scanning to exclude the possibility of root involvement, although again there is no clinical evidence. At 144 kg, C. T. and M.R.I. imaging could prove not only technically difficult, but technically ineffective. "How much of this incapacity is as a direct result of the back injury of 1990"- 3. In my opinion the episode as described in 1990 would now be playing little, if any, part in the current symptomatology. "In your opinion are there other factors contributing to Georgina's current incapacity" - Miss Te Awa has degenerative change which would explain a tendency to back stiffness and discomfort. Miss Te Awa also weighs 144 kg. 4. "Do you feel that Georgina could return to work as a wood carver now? If not, what type of work would she be fit for currently" Miss Te Awa's problems are described above. Miss Te Awa could work, but would need to be in a position where she could maintain mobility, and could avoid stressing her low back. Attention would need to be placed to the positioning and height of work stations, etc., to accommodate the degree of stiffness that Miss Te Awa presents with today. 7 If the conditions of mobility and being able to take commonsense precautions regarding care of the back could be observed, then Miss Te Awa could return to work as a wood carver. In my opinion restriction of work wouldn't be a matter of hours worked, but rather the nature of the work as described above." The Relevant Statutory Provision for consideration is section 37A which states: "Determination of incapacity in relation to earners generally - (1) For the purposes of this part of this Act the Corporation shall determine the incapacity of a person (other than a person to whom section 37B of this Act applies) in accordance with this section. (2) The object of a determination of incapacity under this section is to determine whether or not the person is, by reason of his or her personal injury, for the time being unable to engage in employment in which the person was engaged when the personal injury occurred..." (emphasis added). Section 10 of the Act provides certain exclusions from cover. That section states: "(1) For the avoidance of doubt, it is hereby declared that personal injury caused wholly or substantially by gradual process, disease, or infection is not covered by this Act unless it is --- (a) Personal injury caused by gradual process, disease, or infection arising out of and in the course of employment as defined in section 7 or section 11 of this Act; or 8 (b) Personal injury that is medical misadventure; or (c) A consequence of personal injury or treatment for personal injury covered by this Act." By virtue of the provisions of section 37A there must be a link between the incapacity and the personal injury for which the claimant has cover. Counsel for the appellant submits that there is no such link having regard to the medical evidence but that in any event that medical evidence does not support a finding of incapacity within the meaning of section 37A. It is the appellant's submission that the respondent's present physical condition and the symptoms displayed are as a consequence of degenerative changes to her back rather than from the trauma of the injury sustained in 1990. The respondent in her submissions to this Court did not necessarily seek to dispute the medical evidence which had been presented to the Court but rather contended that she was still suffering pain and that this pain stemmed from the time of her accident and that whilst she was possibly physically capable of resuming her pre-accident employment, the reality was that the protocol of the marae would in effect prevent it and that she is having considerable difficulty gaining employment elsewhere because of the need to declare the difficulty she has with her back. She told the Court that the fact of her back problem and her history of back problems is a disqualifying feature for most employment that she has sought to obtain. In other words a prospective employer does not wish to employ someone who has a history of being on accident compensation with a back injury. This Court can and does have considerable sympathy for the plea which the respondent made about her present predicament, but regrettably that plea 9 does not fall within the criteria which this Court is required upon to consider when determining the issues in this appeal. The medical evidence establishes quite clearly that the respondent's ongoing back problems have their origins in the degenerative changes that have occurred in her spine. It is quite probable that the trauma of the injury hastened the onset of those symptoms which she now experiences. However, the evidence is clear that the trauma of the accident did not cause the degenerative changes and there is no causal link established which would enable this Court to find that there was a link between the rugby injury and the present complaints which the respondent suffers from. There is also the real question that whilst she does suffer from pain, the appellant has been assessed as being able to resume doing the type of work that she formally did, even though the reality of the matter is that such work is no longer likely to be available for her. That is not the test and the question of whether there is in fact work available to her of the type that she formally carried out is not relevant to the question of capacity under section 37A. In terms of section 10 of the Act I find that the evidence does establish that her present symptoms are those caused wholly or substantially by disease or infection and are thereby not covered. The substantial cause is the degenerative changes that have occurred in her spine. Counsel for the appellant referred to the decision of the High Court in Treloar v Treloar 1988 5 NZFLR 209 when the phrase "wholly or substantially" in the context of Matrimonial Property Act 1976 was considered, there Justice McGechan stated: "The phrase "wholly or substantially" gives the first interpretative clue. It is a gradation. The word "wholly" of course requires the entirety: The word 10 "substantially" then is used in the sense of some reduction downwards from that entirety. The word "substantially" is not used in the context envisageing a building upwards from nothing or in an objective comparative way. The use envisages a relatively marginal departure away from entirety... I consider that the word "substantially" should be construed with some strictness requiring an ownership verging more towards 100% level than towards 50% level." In the context of the medical evidence, I find that the substantial cause is that of degenerative changes and therefore, the exclusion contained in section 10 applies. The Review Officer considered that the evidence before her was insufficient to satisfy her on the balance of probabilities. I find that the evidence which has been presented to this Court does now so satisfy the onus which is upon the appellant. I am satisfied that no grounds remain which would entitle the respondent to continue to receive cover under the Act in respect of that 1990 rugby injury. Accordingly then, this appeal is successful and the decision of the Review Officer is revoked. DATED at WELLINGTON this 20 day of August 1998. MJ Beattie District Court Judge TeAwa.doc(gm)