Gibbons v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 251 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ANTHONY STEVEN GIBBONS of Nelson Appellant (Appeal No. DCA 510/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at NELSON on the 9th day of August 1999 APPEARANCE/COUNSEL Appellant in person A D Barnett for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON As identified by Mr Barnett, the issue in this appeal is whether the appellant suffered a continuous incapacity during the period September 1995 to July 1997. The appellant was in business as a self-employed gardener and suffered an injury to his back in 1992. His claim for cover was accepted and he received weekly compensation which ceased in September 1995. In February 1997 he suffered an aggravating injury to his back and in July 1997 applied for reinstatement of weekly compensation. 2 In August 1997 the respondent issued a decision reinstating weekly compensation based on the appellant's earnings for the preceding financial year. The appellant applied for a review of that decision on the grounds that he had been continuously incapacitated as a result of the 1992 injury and that the incident in February 1997 was merely an aggravation of the previous injury and was not a new injury. The application for review was unsuccessful and it is against that decision which the appellant now appeals. In his decision the Review Officer noted that the respondent considered that as the appellant had returned to work for more than 28 days the subsequent period of incapacity was deemed to be a new period of incapacity for the purposes of assessing weekly compensation. The Review Officer considered that the position of this appellant was similar to that of the appellant Eason (28/94) where that appellant had continued to suffer from discomfort and pain after returning to his pre-accident employment. The Court held that the decision of the respondent to decline cover was correct. In his decision the Review Officer noted that the appellant had indicated that he had worked varying hours over the period in his self-employment as a gardener and detailed his various earnings. In support of his appeal Mr Gibbons told me that he has established a very high reputation in the area as a conscientious and successful gardener. His services are sought by many persons and local bodies. He said that while the respondent had endeavoured to assist him in rehabilitation by attending a Workbridge programme this identified that he could work as a taxi operator or the manager of a mini golf operation or as a truck driver. He considered these options as a result of which the respondent supported him in completing a truck driving course which he did in a very short time although he was aware from his own enquiries that there was a very limited chance of obtaining work in that field. That option, however, was closed to him when it was discovered that he was an asthmatic as a result of which he could not obtain a full truck licence. He told me that the result of his endeavours to obtain suitable alternative work were unsuccessful and as his main interest was gardening he continued to endeavour to carry on that business in spite of the pain. The file indicates that various offers were made by the respondent to assist him with the provision of additional labour to undertake the heavy work but again this was not feasible because of the nature of his work and his limited physical ability to work long hours. He told me that he cannot maintain large gardens, he cannot dig or do heavy clearing work or mowing because of the difficulties with his back. He said that on some days he can work for four or five hours but then may have to take two days off in order to let the pain in his back subside. In answer to a submission made by Mr Barnett that he had provided the respondent with certain figures in relation to his income over a period from September to March 1995 he said those figures were merely gross figures which had been provided for the purpose of assessing his ability to repay an overpayment and did not purport to be a true assessment of his net income. He conceded that on some days he may have worked for long hours but on other days was completely unable to work. 3 I have checked the file with particular reference to various assessments of his abated weekly compensation which demonstrate that on many occasions he worked only limited hours which would confirm his statement that it was the continuing aggravation of his back which limited his ability to work. Mr Barnett submitted that there is no medical support for the appellant's contention that he suffered the same symptoms and problems continuously between September 1995 and July 1997. He submitted that the reports from Dr E Scott merely indicated periods of partial incapacity. He submitted further that the appellant's preference to continue gardening "contra indicates continuous incapacity". He submitted that while the appellant was certified as unfit prior to the cessation of compensation in 1995 and certified again as unfit in July 1997, that does not by itself establish a continuous period of incapacity. Mr Barnett submitted that the respondent also relied on the decision in Eason. The issue before me is whether the appellant has satisfied the onus on him that he suffered a continuous incapacity between September 1995 and July 1997 There is no doubt that he suffered a back injury in 1992 and that he still has back injury problems. On looking at the file and the assessments of his abated income it is clear that the appellant has not been able to fully return to his pre-accident work capacity. He has only worked limited hours throughout the period from 1992 until the present time. I reject Mr Barnett's submission that the fact that the appellant is adamant that he continued with gardening contra indicates continuous incapacity. The appellant considered that because he could not find other suitable work it was preferable for him to do limited gardening work because that was his field of expertise. The appellant undertook various assessments including the truck driving course with a view to his obtaining an alternative occupation but in the ultimate nothing suitable to his capacity could be found. He submitted, and I have no reason to disbelieve him, that he has a very high reputation for his gardening ability and that this is a work which he thoroughly enjoys provided he can do so without pain. The undated letter from Dr Scott in replying to the respondent's letter of 30 July 1997 states: "1. Mr Gibbons suffers from chronic low back pain. 2. He has suffered from this since an injury back in 1992 and since that time has been seen regularly regarding low back pain and prescribed, not infrequently, analgesia for this. In the two years I have known him he has not actually been off until recently on ACC. Despite my recommendation he has been adamant that he continue his gardening despite the fact that at times he has had severe pain and clearly the heavy work involved has aggravated his symptoms. I discussed his case with Wendy Dorrington back in April 1996 as Tony felt there was some conflict between himself and ACC at that stage. 4 In February this year Tony injured his lower back suffering more severe pain than usual, with the pain now radiating into his left leg. He was seen by Alex Rutherford when he was clearly suffering from left sciatica and had neurological signs in his left leg, including muscle wasting and absent reflexes. A prolapse at L2/3 was confirmed by CT scan. 3. His current incapacity relates to persistent lower back pain, often radiating down to the left knee. Clearly there is fluctuation as to the severity of it but often he is unable to fully extend and over the past few months has required regular analgesic for this. 4. I feel that Tony is always going to be susceptible to lower back pain and I feel that this is far more likely should he return to the kind of work that he has been doing gardening as I discussed with Wendy last year. I have always felt that some form of retraining for lighter work would lead to a better prognostic outcome for Tony. 5. Tony has recently been receiving further physiotherapy from Mike Monaghan. This gives him some form of temporary pain relief and when I last saw him on 16 July he conceded that any good that he was achieving with Mike was then undone by returning to work and hence he agreed to take time off. He has not yet been reassessed as to how his symptoms have settled with him not working. 6. After speaking to Wendy last April it was clear that previous retraining has been tried with Tony and perhaps this has to be further reviewed or for him taking a more supervisory role in his gardening business." I consider that looking at the evidence in totality there is sufficient medical support in Dr Scott's letter for the appellant's submission with his condition has been continuous since 1992 and that he has struggled along because gardening has been his life long pleasure and is the only job which he is equipped to manage. The evidence indicates that throughout the whole period he has only worked in a limited fashion. I consider that the incident in February 1997 was merely an aggravation of the existing problem with the consequent result that his then limited capacity was further limited. I consider that the decision of the respondent and the Review Officer was wrong and that the appellant has suffered a continuous incapacity between September 1995 and July 1997 which entitles him to reinstatement of weekly compensation on the basis of the original assessment. DATED at WELLINGTON this & TH day of September 1999 A W Middleton District Court Judge dca510-98.doc (nr)