Bron v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 102 /99 DCA 442/98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 ("the Act") AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ALBERT BEREND BRON Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent HEARD at WELLINGTON on the 17th day of February 1999 DATE OF DECISION: 26 April 1999 APPEARANCES/COUNSEL Appellant on his own behalf Miss C McBride and Mr A Barnett, counsel for respondent DECISION OF JUDGE P F BARBER The Issue The broad issue is whether the appellant is, by reason of his personal injury, for the time being unable to engage in employment in which he was engaged when the personal injury occurred. 2 The Essential Facts There seems to be no dispute about the facts. On 7 November 1995 the appellant lodged a claim for a back injury. That had occurred on 20 September 1995 when he slipped and fell on a slipway at a boatshed. He was doing some repair work (apparently, to a fishing boat or nets) and slipped and landed on his back. At that date the appellant was working out his resignation notice as an executive officer for the Tribunals Division of the Department for Courts. He had tendered his resignation on 19 July 1995 to take effect on 25 October 1995 but had eleven and a half days accrued annual leave so was being paid up to and including 10 November 1995. After the accident he took 21 and 22 September 1995 off work on sick leave and returned to work on Monday, 25 September 1995. He said that he was able to work in the office doing menial work until his last day of duty on 25 October 1995. The appellant had intended to pursue a commercial fishing venture with a friend on his retirement or resignation from the said Department, but at the date of accident had not earned any money as a fisherman and he and his friend were still attending to preparatory work for the venture. He worked on a commercial fishing boat from 30 October 1995 to 6 November 1995 to gain experience but found he was unable to haul nets, lines or pull up the anchor on his own "as my back was not up to it". Mr P Barker's Review Decision of 15 October 1998 In a careful and succinct decision the Review Officer covered the facts, including the medical evidence and the submissions for each party and provided reasons for declining the appellant's application for review. He found that the Corporation's decision from 5 June 1997 would stand i.e. that weekly compensation would cease as the Corporation considered that the appellant was then capable of performing his past employment. The Corporation had further decided on 15 May 1998 that the decision of 5 June 1997 would stand and that weekly compensation would not be reinstated as it considered that the appellant's condition had not deteriorated The Review Officer focused on s.37A(2) and 37A(4) (b) of the Act and found that the appellant was able to engage in the employment which he had been engaged in when the personal injury occurred so that weekly compensation should cease. The Review Officer also accepted the medical evidence that the appellant's condition had not deteriorated to the extent that he was unable to return to his former work position. Essentially, the Review Officer considered that the appellant was able to carry out his duties as an executive officer for the Tribunals Division of the Department for Courts. He also considered that position was mainly sedentary and that the appellant would not be restricted in his job nor, particularly, from its requirements of travel and carrying heavy files and that those occasional requirements could, in any case, be overcome by alternative arrangements such as couriering files or obtaining the assistance of other staff. 3 The appellant's notice of appeal to this Court stated as the ground of appeal "That the Review Officer failed to accept medical certificates to support my claim for reinstatement" and raised as a question of law "That I was able to carry out fully all of the duties of employment after personal injury occurred". The latter question would seem rather to be a question of fact. A Summary of the Medical Evidence Mr Rao, Orthopaedic Surgeon, examined the appellant on 24 February 1996 for the purposes of writing a report to the Corporation and concluded:- "I feel that the diagnosis is essentially one of exacerbation of his pre-existing condition and long-standing lumbar spondylosis I was rather surprised after his initial injury, that Mr Bron decided to take up a fish venture when he clearly had some problems with his back and his hip prior to this I certainly feel that Albert is more suited to a more sedentary type of work and I can see no reason why he could not return to his sedentary occupation at the Justice Department over a period of about six weeks or so. I recommend that he carry on with some regular anti-inflammatory in addition to appropriate back rehabilitation via physiotherapy. I would feel that the long term prognosis is satisfactory although I would not recommend that Mr Bron return to his interests in the fishing area but see no reason why he could not return to his job in the Justice Department." Dr Wesley-Smith, the appellant's GP, completed a Treating Practitioner Report on 18 May 1997 and concluded:- "This man's usual occupation just prior to the accident was the sedentary one. He injured his back in a brief interlude doing a manual job. He is fit for his original employment. I am not sure why ACC is paying him." A Dr Mclennan assessed the appellant and considered the medical information available as part of the medical case review. He wrote to the respondent on 3 June 1997 recommending that the appellant was capable of full-time work in a light job such as the office work he was performing at the time the injury occurred. A Dr Doherty came into the picture for the appellant in January 1998 and, inter alia, referred the appellant back to Mr Rao for reassessment. However, the latter's report of 18 March 1998 states, inter alia:- "I feel that Albert, in essence, has no alteration from my last evaluation but he persists in having very poor abdominal musculature, posture and flexibility ... There is no reason why Albert, if it was feasible, could not do some light duties 4 although I am aware that this does cause some discomfort. However, he is not necessarily damaging his spine." Then Dr Wesley Smith, the appellant's usual GP, was asked to comment on Mr Rao's report of 18 March 1998 and Dr Doherty's medical certificate of 15 January 1998. In a letter dated 23 April 1998, Dr Wesley-Smith responded that there had been no change in the appellant's ability to work since mid 1997 and that he would still be fit to return to his pre-accident employment as an executive officer with the Department for Courts. I appreciate that the Review Officer also noted, in terms of medical evidence, that Dr Stevenson has certified that the appellant has restrictions in his abilities. Indeed, in his submissions to me the appellant stated that on 17 April 1998 Dr Stevenson examined him and issued an ARC18 certificate stating that he could work four to five hours per day, five days a week and issued further such certificates on 9 July 1998, 5 October 1998 and 5 January 1999. The Submissions I shall be incorporating parts of the submissions for the respondent into my reasons for decision below. I now refer further to the combined/ mixed submissions and evidence from the appellant. The appellant, helpfully, reviewed the medical evidence from his point of view and it is sad that he had severe angina problems in about April 1998. Inter alia, the appellant stated:- "My previous employment required me to travel throughout New Zealand with the Liquor Licensing Authority from time to time. Duties included carrying heavy baggage, setting up venue rooms, travelling distances and looking after the members of the Authority. I am not able to do this work in my present medical condition. The Corporation has approved home help in respect of my injury and that is still current i.e. that I can't do housework is accepted by ACC." In his final submissions the objector referred to the Corporation seeming to now rely on s.37B of the Act, as well as s.37A, but that the test must be whether he could do the work for which he had been employed prior to the accident. He said that he would not be able to travel with three people for five days and look after them 24 hours a day and that it would be difficult for him to even carry out "normal office work forty hours a week as my back would stop that". The Liquor Licensing Authority is one of the Tribunals serviced by the Tribunals Division of the Department for Courts which also services a large number of Tribunals including those for which I hold warrants (indeed, including ACC cases). Accordingly, it is accepted that I happen to have a good understanding of the duties of the appellant's job at the time of his accident and at material times. 5 The Relevant Provisions of the Act Although there was reference to quite a number of sections in the Act, it is only necessary, for present purposes, to set out the following extracts from ss. 37A and 37B:- "37A. 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 ...". (my emphasis) "37B. Determination of incapacity if person has ceased to be an employee or in cases of loss of potential earning capacity --- (1) For the purposes of sections 44, 45, and 46 of this Act, the Corporation shall determine a person's incapacity in accordance with this section. (2) The object of a determination 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 work for which the person is suited by reason of experience, education, or training, or any combination of those things ...". (my emphasis). Reasons for Decision In my view, it does not much matter in terms of the facts whether this case is addressed in terms of s.37A or s.37B, although it does seem that the latter section provides the more correct approach. The appellant's entitlement to weekly compensation arose from the date of incapacity, namely 7 November 1995. The appellant had ceased to be in employment from 25 October 1995. The definition of 'employment" in the Act does not include the 11.5 days of accrued annual paid leave available and taken on the termination of his employment. However, the appellant is deemed to continue to be an employee in terms of s.44(2) of the Act because his 11.5 days of annual leave create a payment on which earner premium is payable. S.44(4) deems the appellant to have been deriving earnings for a further 11.5 days following the day he ceased employment (25 October 1995) and this period includes 7 November 1995, the date of incapacity. Accordingly since the appellant is a person to whom s.44 applies, the applicable test of incapacity is that contained within s.37B. This is because s.37A(1) specifically 6 excludes s.37A from being applied where s.37(B) otherwise applies and the latter applies for the purposes of s.44 (refer s.37B(1)). In any case, in terms of s.37A the medical evidence quite clearly shows that the appellant is able to engage in the employment in which he was engaged when the personal injury occurred. Also, in terms of the different test established by s.37B, the medical evidence quite clearly shows that the appellant is able to engage in work for which he is suited by reason of experience, education, or training or any combination of those things. The evidence shows that the appellant is not incapacitated from work as a Tribunals Executive Officer. That is a sedentary job. Although it is true that it is desirable that such an Executive Officer (as the appellant was) be able to undertake some relatively heavy duties, such as handling heavy suitcases and equipment and files, it is not necessary that he do that work personally. Also, there cannot be any dispute that the appellant's background, experience, and training over many years is well suited to his previous job as a Tribunals Executive Officer. In terms of the applicability of s.37B, the issue is suitable work "by reason of experience, education, or training" or their combination so that any particular perceived downside to the Tribunals work, such as the said handling aspect, is irrelevant. The appellant had been employed at the Department of Justice in clerical type work from 1987. Prior to that had been a medical clerk with the New Zealand Army since 1985. The medical evidence in this case is clear that the appellant could return to some sort of general office/ clerical work for which he has had over 18 years experience i.e. suitable work in terms of s.37B. Further, in terms of s.37A, the medical evidence establishes that he is capable of returning to his pre-injury employment as an executive officer at the Tribunals Division of the Department for Courts. I agree with the submission for the respondent that the totality of the medical evidence indicates that the appellant has not suffered any deterioration and is currently still able to return to his said employment as an executive officer. I appreciate that some relatively minor discomfort might be involved as the medical evidence contemplates, although I am satisfied that as an executive officer for the Liquor Licensing Authority it is not necessary that the appellant himself undertake any duties which would even cause him discomfort. The heavy aspects of that job position, such as handling luggage, are a fairly minor part of an executive officer's duties and it is not compulsory, by any manner of means, that the executive officer himself (or herself) undertake them. The appellant is, at the very least, able to substantially perform his duties as an executive officer. I take the view that it is reasonable for the Corporation to consider that if the appellant is substantially able to return to work as an executive officer, then he is no longer incapacitated in terms of the Act;- notwithstanding that some of his former duties might have to be adapted or undertaken by subordinates. That view is consistent with Judge Beattie's decision in Lamb (74/98) and Judge Middleton's decision in Eason (28/94). In any case, as I have explained above, the less stringent test (from the Corporation's point of view) of s.37B is that applicable to this case. 7 Accordingly, I find that the totality of the medical evidence clearly shows that the appellant is capable of returning to his employment as an executive officer, or to similar work, and that he has been able to do so since at least 5 June 1997. Accordingly this appeal fails. Judge P F Barber District Court Judge WELLINGTON dca44298-2.doc(nl)