Welsh v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. ( 6 | /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN CHRISTINE HELEN WELSH of Christchurch Appellant (Appeal No. DCA 196/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD at CHRISTCHURCH on the 23rd day of June 1998 APPEARANCES A J Cadenhead for appellant E Long for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the Review Officer was correct to determine that the commencement of the appellant's incapacity for the purposes of calculating weekly compensation was 13 December 1995. The background which give rise to the appeal is that the appellant, who was working as a Personal Assistant to the Manager of the Trustbank Card Centre, lodged a claim for Occupational Overuse Syndrome with the respondent on 1 July 1993. On 9 August 1993 the respondent confirmed that cover had been granted. On 11 July 1993 the appellant was given three weeks off work and thereafter resumed from 3 August 1993, working four hours per day until 6 September 1993 when she 2 returned to full time work. The appellant continued in this position until 5 December 1994 when she was granted twelve months' parental leave. The appellant returned to work on 13 December 1995 but was only working half days because of the continuing problem with Occupational Overuse Syndrome. The respondent notified the appellant that she was not entitled to abatement of earnings because she was not an earner at the date of her incapacity which it assessed as 13 December 1995. The respondent continued to work half days until 24 May 1996 when her employment ceased because of her ongoing incapacity which precluded her from working full days. The respondent confirmed that the appellant was entitled to weekly compensation based on a loss of earnings figure of $1.43 per week because she was not working during the year prior to the date of her incapacity. There is a report from Dr J Alchin, an Occupational Physician which is dated 27 October 1995. That report was directed to the appellant's employer and indicates that the doctor was providing an opinion as to the appellant's ability to return to her previous job following maternity leave. The report indicates that by April 1994 the appellant had stopped performing the monthly statistics work which she had previously done because of the pain in her wrists. She was then four months pregnant. Dr Alchin noted that in late November she commenced maternity leave for one year and her child was born in early December 1994. Dr Alchin noted that the appellant intended to remain on maternity leave until December 1995. Dr Alchin gave as his opinion: "In my view Mrs Welsh has developed a chronic regional pain syndrome affecting her right arm, right shoulder girdle and neck. This appears to have commenced some six months or so after beginning work at Trust Bank Card Services, and appears to have been initially related in particular to writing the monthly statistical report for the branches, with her right shoulder held flexed while she operated the mouse and numeric keypad. Other terms for a chronic regional pain syndrome include localised fibromyalgia, a myofascial pain syndrome, or chronic OOS. These all mean basically the same. The evidence suggests that the pain is not due to any tissue damage (ie there is no "injury") but is due to a dysfunction of her pain perception mechanisms of the sensory nervous system." He concluded his report with the following statement: "Thus my recommendation is that Mrs Welsh should return to work in December at the end of her maternity leave. This should be initially on a part-time basis, with attention to the previously mentioned correct work practices and posture." On 5 July 1998 the respondent notified the appellant that pursuant to section 39 she must be deemed to have had earnings for the twelve months prior to the date of incapacity in order to be eligible for cover for loss of earnings. The respondent stated that as the appellant had returned to her employment on 13 December 1995 that was the date of her incapacity. As the appellant's only earnings were the half day worked on 13 December 1995 and she had no other earnings for the preceding four 3 weeks or twelve months, the half day pay was the figure used to calculate loss of earnings. The appellant applied for a review of that decision. The appellant was referred by the respondent to Dr W E D Turner, a Specialist in Occupational Medicine, whose report of 24 September 1996 states: "Christine went on maternity leave in December 1994 at which time she was working 71/2 hours per day, 5 days a week in her capacity as a personal assistant to the manager of Trust Bank Card Services. At this time even though she was working full time she was struggling with pain felt in her right arm, shoulder, back and neck. She had remained at work essentially through her loyalty to the Bank as well as not wanting to give in to the pain and therefore become disabled. She remained on maternity leave for a year over which time there was reasonable improvement over the first 2 months after which her symptoms stabilised to the extent that she had a plateau of pain for the remainder of her maternity leave." His conclusion was: "In conclusion therefore there is little doubt in my mind that this person is still entitled to earnings related compensation for her occupationally induced myofascial pain syndrome. Clearly her condition had not resolved at the time she went off on maternity leave and although she did improve for the first 2 months there was a plateauing of response thereafter, no doubt with perpetuating factors from the activities of daily living. She attempted to return to work albeit under duress and quite understandably suffered a significant crescendoeing of symptoms eventually being dismissed by the Bank, in my view, inappropriately in the middle of a rehabilitation programme." The Review Officer found that on the medical information the appellant was incapacitated from returning to her job as from 13 December 1995 until she ceased work in May 1996. He confirmed that the decision of the respondent that the appellant was not an earner prior to the date of her incapacity was correct and that the decision relating to her entitlement to weekly compensation was correct. It is against that decision which the appellant now appeals. The appellant was granted leave to adduce a report from Dr J M Thwaites, which is dated 29 August 1997 and states: "Mrs Welsh first consulted me on 31 May 1994 requesting maternity care. I looked after her pregnancy from then till the birth of her son on 11 December 1994. This necessitated frequent check-ups and I was well aware of her co- existent problem of Occupational Overuse Syndrome affecting her upper back and both upper limbs. We frequently discussed the problems she was having and I suggested on at least two occasions that she consider stopping work. She was reluctant to do this because of a sense of loyalty to the bank and she did not wish to put stress on her fellow employees. 4 When she finally stopped work it was both reasons. The pain from the OOS had become chronic and she physically felt she could not continue. She was also in the late stage of her pregnancy." Mr Cadenhead submitted that the first issue is to ascertain the correct date of incapacity. He submitted that on the basis of the medical reports, notwithstanding that there are no other medical certificates, overall consideration of the medical evidence indicates that the appellant was incapacitated in November 1994. He submitted that it is clear from the medical reports that the appellant had suffered the progressive onset of Occupational Overuse Syndrome during the period of her employment with Trustbank but that she felt it her duty to continue to work at the bank until she became pregnant and took maternity leave. Mr Cadenhead submitted that on the basis of the decisions in Ngaruhe (83/95) and Campbell (113/95) in which each of those appellants, in addition to suffering work related accidents, also suffered from various forms of spinal degeneration had application to this appeal. He submitted that on the basis of the decisions in those appeals it was only necessary for this appellant to show that only to a degree or in part was the ongoing Occupational Overuse Syndrome condition the cause of her incapacity in November 1994. Mr Cadenhead submitted that while the Review Officer endeavoured to distinguish the position in this appeal from the position in those two cases he did not do so. Mr Cadenhead submitted that there had been a number of appeal cases dealing with the question of incapacity under section 37 and in particular referred to Eason (28/94). He submitted that while that case was decided on its facts, there has been an evolution in the case law whereby the principles enunciated in Lance NRAR 132, a decision under the Accident Compensation Act 1982, have application to section 37. He submitted that on that basis the incapacity to work need not necessarily be solely the result of the personal injury by accident but might also be only partly attributable to that cause. Mr Cadenhead also referred to the decision in Stephenson (123/97) in which that appellant who suffered back and neck injuries in 1985 and 1991 had been working in the Inland Revenue Department for some eight years and took maternity leave in December 1993. The evidence indicated that prior to taking that leave she had arranged with her employer that she would return to her previous employment after the year's leave but on a part time basis only. At the appeal hearing that appellant gave evidence that she had continued working up until the date she took maternity leave in spite of her injury problems because she was the principal earner for her family. She also confirmed that had it not been for her pregnancy she had anticipated continuing to work full time. Mr Cadenhead submitted that the confirmation by that appellant that she intended to return to work represented the difference between that appellant and the appellant in this case. This appellant had not given any specified date upon which she intended to return to work but had to undertake rehabilitation before she was able to do so. Mr Cadenhead submitted that the date of December 1994 and not December 1995 should be accepted as the date of the appellant's incapacity otherwise the 5 appropriate date should be the date of her final termination in May 1996. He submitted that on the basis of the medical reports it was clear that Dr Turner and Dr Alchin had indicated that the appellant should not have been working up to December 1994. Ms Long referred me to the medical reports and to various cases to which I have referred. In her submission the issue before the Court in this appeal is almost identical to the facts in Stephenson to which reference was made by Mr Cadenhead. She submitted further that there are no contemporaneous medical certificates which show that the appellant was incapacitated in whole or in part by her personal injury as at 5 December 1994. She submitted that the retrospective reports of Drs Turner and Thwaite therefore were not sufficient to provide the necessary evidence of incapacity at that time. She submitted that the alternative date for incapacity of May 1996, as proposed by Mr Cadenhead, could not be correct because Dr Alchin's report shows that when the appellant returned to work at the completion of her leave she was unable to work on a full time basis by reason of her personal injury and that she was therefore incapacitated by reason of her personal injury for at least hour hours per day. The issue falls to be determined under section 37A(2) which states: " 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." Under section 3 of the Act, "incapacity" is defined as: "incapacity for employment; and includes absence from employment by reason of necessary health care treatment or service of a kind for which the Corporation is required or permitted to make payments either directly or indirectly in respect of personal injury covered by this Act." The evidence is clear that the appellant was entitled to cover under the Act for Occupational Overuse Syndrome which arose out of and in the course of her employment at the Trustbank Card Centre. That cover was granted following the claim on 1 July 1993. After the initial period of three weeks off work the appellant then returned on a part time basis and by 6 September 1993 she was able to work full time until she took maternity leave in December 1994. She claims, and this is recorded in the medical reports, that while she had worked full time between September 1993 and December 1994 it was only with great difficulty and because of her feeling of obligation to her employer. She then took maternity leave for one year and resumed work in December 1994 but only worked half days because of the Occupational Overuse Syndrome problem. While Mr Cadenhead has submitted that the decisions in Ngaruhe and Campbell suggest that there is an "indivisibility test" which mirrors the findings of the Appeal Authority decision in Lance, I do not consider that such a position applies in this 6 case. I agree with Ms Long that the facts in Stephenson are almost identical. In Stephenson the appellant carried on with her work in spite of pain which the Court considered was the same situation as applied in Eason. While Stephenson indicated that she would return to work on completion of her leave, I do not consider that that materially alters the position. She worked full time up to the time she took leave in spite of her pain problems which is the same as for this appellant. The issue is whether the appellant was, by reason of her personal injury, unable to engage in employment in which she was engaged when the personal injury occurred. As the appellant worked for the period until the time of her taking maternity leave, it cannot be said that she was at that time incapacitated from carrying out her employment because she was in fact doing so. While she did so and put up with the pain, this does not demonstrate that she was incapacitated from doing the work and the situation in that regard is similar to the position in Eason. Accordingly, as at December 1994 when the appellant took maternity leave, it could not be said as a fact that she was unable by reason of her personal injury to engage in her employment. When the appellant then resumed work in December 1994 it was found that she was incapacitated which limited her capacity for work to only four hours per day so that was the commencement of the period of incapacity. While Mr Cadenhead submitted that the opinions of both Drs Turner and Alchin was that the appellant should not have been working up to the time she took leave, she insisted on doing so and this demonstrated a capacity to do so. I agree with Ms Long that Mr Cadenhead's alternative submission that the date of incapacity was the date upon which she ceased work in May 1996 is not correct because she had been incapacitated for the period from December 1995 after Dr Alchin recommended that she work on a part time basis only. The appellant has not established the onus on her to demonstrate on the balance of probabilities that the decision of the Review Officer was wrong and accordingly the appeal is dismissed. DATED at WELLINGTON this 22nd day of July 1998 A W Middleton District Court Judge dc196-97.doc (nr)