Robinson v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT DUNEDIN [2012] NZACC 181 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN CHRISTINE ROBINSON (ACR 551/10) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at DUNEDIN on 16 March 2012 APPEARANCES Mr P Sara, Counsel for Appellant. Mr I Hunt, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] This appeal gives rise to a number of issues, all of which can be identified as being issues involving questions of law, and which arise from the respondent's primary decision of 13 April 2010, whereby it granted the appellant back-dated weekly compensation for a period of three months commencing on 24 February 2009 and being the three month period which it had determined was the period of the appellant's incapacity attributable to the remedial surgery which she underwent on 24 February 2009 in respect of a treatment injury for which she had cover. [2] The facts relevant to the issues in this appeal are not in dispute and may be noted as follows: In 1975 the appellant suffered a severe back injury as a result of being crushed by a car. 2 In 1985 the appellant underwent spinal fusion surgery in respect of that back injury. That surgery was not entirely successful and in 1991 the appellant had surgery on both feet to correct her posture and gait and which was intended to assist in remedying her ongoing back problems. The appellant continued to experience pain in her feet and on 20 May 1993 she sought treatment for discomfort in her feet and which treatment led to the removal of screws that had been inserted in the 1991 surgery. Those screws were removed in January 1994. The appellant continued to experience ongoing problems and in October 2007 she came under the care of Mr J Dunbar, Orthopaedic Surgeon, and on 24 February 2009 Mr Dunbar carried out corrective surgery to the appellant's feet. On 24 June 2009 the respondent accepted the appellant's claim for cover for a treatment injury described as 'Malunion of the MTP arthrodesis causing excessive dorsiflexion'. . At the time that the appellant underwent the corrective surgery, she was employed in a business with her husband, that business being a painting and decorating business and in respect of which she was a shareholder employee. Subsequent to the grant of cover the appellant sought weekly compensation for the period of her incapacity arising from the corrective surgery undertaken on 24 February 2009. The respondent declined to grant weekly compensation to the appellant on the basis that it had determined that she was not an earner at the time of her treatment injury, namely 20 May 1993. That decision was taken to review, and in a decision dated 25 February 2010, the respondent's decision was quashed by the Reviewer as it was found that the appellant was an earner at the date of that injury, she being employed as a bank teller by Countrywide Bank. The Reviewer directed the respondent to assess the appellant's eligibility for weekly compensation during the period of her incapacity on and after 24 February 2009. Consequent upon that review decision, the respondent sought the advice of Mr Dunbar as to his assessment of the estimate of time it would have taken the appellant to be able to return to work as a bank teller following her surgery of 24 February 2009. It was Mr Dunbar's advice that in his opinion the appellant would have been able to return to work as a bank teller after three months post- operatively. It was consequent upon that advice that the respondent issued its decision, now the subject of this appeal, on 12 April 2010, advising the appellant that she would be entitled to three months of weekly compensation commencing from 24 February 2009. The respondent did so make back-dated payment of weekly compensation for that three month period. The appellant sought a review of that decision on the basis that the period of incapacity should have had regard to the appellant's employment at the time of the surgery, and which required a more lengthy period of recovery to again be capable of engaging in the painting and decorating business, as opposed to the period which had been determined for returning to work as a bank teller. In a decision dated 5 August 2010, the Reviewer determined that the issue of the appellant's incapacity was to be determined in relation to her employment at the time she sustained her treatment injury, that is May 1993, and at which time she was employed as a bank teller, as opposed to her employment as a painter/decorator as at the date of incapacity consequent upon the surgery. [3] With the foregoing as the background, it is Counsel for the Appellant's contention that the appellant's employment which is to determine her incapacity and the length thereof was her employment as a painter/decorator at the time of surgery in February 2009, and further, that the quantum of weekly compensation is to be determined from her earnings in that employment. [4] It is Counsel for the Respondent's submission that the relevant rate of earnings and the period for same, is to be assessed on the basis of the appellant's employment at the date of injury, that is the treatment injury first identified in May 1993 and at which time the appellant was employed as a bank teller. [5] There is a matter which needs to be identified at this point which in fact was a matter which could not be conclusively confirmed by counsel for the parties at the date of the hearing of this appeal, but which has subsequently been confirmed. That fact is that the respondent did in fact pay the appellant her back-dated three months weekly compensation with the quantum of that weekly compensation having been assessed on the basis of the appellant's income from her employment as a self-employed painter/decorator for the relevant period prior to the surgery in February 2009 [6] It is Counsel for the Respondent's submission that that quantum is incorrect and he is asserting that the quantum of the appellant's entitlement must be based on her relevant earnings as a bank teller for the relevant period up to May 1993, being the date it is contended was the deemed date of the treatment injury for which cover was subsequently granted some 16 years later. [7] It is also an accepted fact that the appellant was not at any stage incapacitated by her medical conditions between May 1993 and February 2009, and her evidence was that she continued to work in various types of employment throughout that period. [8] In his submissions, Mr Sara asserted as follows: The appellant's entitlement to weekly compensation must be calculated on her loss of ability to earn as a painter/decorator, being the employment from which she derived income immediately before her incapacity on 24 February 2009. The appellant did not suffer incapacity at the time of her injury and it therefore cannot be that her income at that time which is relevant to the issue of weekly compensation. The duration of the appellant's entitlement to weekly compensation must be determined on the basis of her medical condition subsequent to the surgery in February 2009 for such period of recovery as that post-surgery condition would require before she was able to return to her pre-surgery employment. The treatment injury for which cover was granted to the appellant was that of malunion of MTP arthrodesis causing excessive dorsiflexion, and this medical condition was not diagnosed until July 2007, and it therefore should be that date which is the date of the treatment injury and at which time the appellant was employed as a painter/decorator, and for this reason alone the period of the appellant's incapacity should have regard to her physical ability to resume that employment post-surgery. [9] Mr Hunt, Counsel for the Respondent, submitted that contrary to what in fact did occur subsequent to the appellant being entitled to weekly compensation, the quantum of that weekly compensation should have been determined by reference to her income as a bank teller in 1993, being the deemed date of the covered injury, and further, that the appellant's entitlement to weekly compensation can only be for the period for which her incapacity from that covered injury would have lasted in relation to her employment as a bank teller. [10] Counsel submitted that section 38 of the Act makes it clear that the date on which the person is deemed as suffering the treatment injury is the date on which they first received treatment for the symptoms of that injury, even if it was not known then that some previous treatment was the cause of those symptoms. [11] Counsel further submitted that the effect of sections 100, 103, and Clause 32 of the Act makes it clear that the assessment of earnings relates to the date of injury and not to the date of incapacity, and that any resulting hardship is for Parliament to ameliorate, given the clear words of the Act, as was stated by Justice Gendall in the High Court decision of Vandy (CIV 2010-485-001331). DECISION [12] In this case the first legal issue that needs to be determined is the date on which the appellant is taken to have suffered the treatment injury in question. The relevant statutory provision is section 38 of the Act where the relevant subsections are (1) and (2) and which state as follows: 6 38 Date on which person is to be regarded as suffering treatment injury (1) The date on which a person suffers a treatment injury is the date on which the person first seeks or receives treatment for the symptoms of that personal injury. (2) Subsection (1) applies even if it was not known, at the time the treatment was first sought or received for the symptoms, that previous treatment was the cause of the symptoms. [13] On the facts of this case, I find it to be the position that when the appellant sought treatment in May 1993, it was not identified that the physical condition that she was displaying had arisen as a consequence of the previous surgical treatment. That connection was later identified as being the case when the appellant was seen and examined about her ongoing problems in 2007. I therefore find it to be the case that in terms of section 38 the appellant is deemed to have suffered her covered treatment injury on 20 May 1993. [14] That date therefore becomes relevant when identifying the appellant's entitlement to weekly compensation as a consequence of incapacity arising from that treatment injury. [15] In that regard, the provisions of section 100 and 103(2) of the Act are relevant. Those provisions respectively state as follows: 100 Entitlement to weekly compensation depends on claimant's incapacity for employment and vocational independence (1) A claimant who has cover and who lodges a claim for weekly compensation - (a) is entitled to receive it if the Corporation determines that the claimant is incapacitated within the meaning of section 103(2) and the claimant is eligible under clause 32 or clause 44 of Schedule 1 for weekly compensation: ... 103 Corporation to determine incapacity of claimant who, [at time of personal injury, was earner or on unpaid parental leave] . . . (2) The question that the Corporation must determine is whether the claimant is unable, because of his or her personal injury, to engage in employment in which he or she was employed when he or she suffered the personal injury. 7 [16] As noted by section 100(1)(a), a claimant's eligibility for weekly compensation requires that eligibility to be established under Clause 32 of Schedule 1 to the Act. The relevant provisions of Clause 32 state as follows: 32 Corporation to pay weekly compensation for loss of earnings to claimant who was earner (1 ) The Corporation is liable to pay weekly compensation for loss of earnings to a claimant who - (a) has an incapacity resulting from a personal injury for which he or she has cover; and (b) was an earner immediately before his or her incapacity commenced. (2) The claimant is entitled to weekly compensation for loss of earnings - (a) on and from the day after the first week of incapacity ends; and (b) for any period of incapacity, after that first week, resulting from the personal injury for which he or she has cover. (3) The weekly compensation payable is 80% of the claimant's weekly earnings, as calculated under clauses 33 to 45 and 48. [17] As provided in Clause 32(3) the weekly compensation is 80% of the claimant's weekly earnings, and as this appellant was a shareholder/employee at the time of her incapacity, the further relevant clause for the calculation of the quantum of weekly compensation in the case of this appellant, as a shareholder/employee immediately before incapacity commenced, is Clause 39, and where the clause identifies that the earnings are to be earnings received for the relevant period dating back from the time the incapacity commenced. [18] With the foregoing being the statutory provisions which are relevant to this appellant's entitlements, I find the position to be, in accordance with section 103(2), that this appellant was incapacitated, that is, unable to engage in the employment of a bank teller, being the employment she was engaged in when she was deemed to have suffered her covered personal injury, for at least a three month period commencing on 24 February 2009. [19] Having determined the fact of incapacity in accordance with section 103(2), section 100(1)(a) next requires eligibility for weekly compensation to be considered under Clause 32 and following, and as I have identified, when clauses 32 and 39 are considered it is clearly the case that this appellant was an earner immediately before 8 her incapacity commenced, and as such is entitled to weekly compensation, and that the quantum of that weekly compensation is to be calculated in accordance with Clause 39, which provides for the amount of weekly compensation to be determined by way of a calculation of a claimant's earnings immediately before the incapacity commenced, pursuant to whichever calculation of same is the correct one in the circumstances, and which I identify would be a calculation pursuant to Clause 39(2)(c), where the amount of the weekly entitlement would be 80% of the sum which is the amount of her earnings for the 52 weeks prior to the commencement of her incapacity, divided by 52. [20] As it is the case pursuant to Clause 32 that a claimant has an entitlement to weekly compensation for the period of incapacity, I find that the status of incapacity must be that which is set out in section 103(2), that is, unable to engage in the employment in which she was employed when she suffered the personal injury and which, in the case of this appellant, was an inability to work as a bank teller for a period of three months commencing on 24 February 2009. [21] It then follows that the quantum of weekly compensation for that period of incapacity is as stated in Clause 32(2) and (3) and Clause 39 (2)(c), and being 80% of her earnings as a shareholder/employee engaged in the business of painting and decorating as stated in paragraph [19] above. [22] Thus, I find as a matter of law, that the position of this appellant's entitlement to weekly compensation is an entitlement to three months of weekly compensation with the quantum of same being assessed on her pre-incapacity earnings as a painter/decorator. The situation as it stood prior to this appeal was that the appellant had in fact received weekly compensation based on her earnings as shareholder/employee in her painting/decorating business for that three month period, and therefore I find that the respondent has in fact correctly provided the appellant's statutory entitlement to weekly compensation. [23] For the sake of completeness, I state that the period of incapacity must be in accord with the definition of incapacity as stated in section 103(2), and so the period of the appellant's inability to return to her pre-incapacity employment is not the relevant period. It is her inability to return to her pre-injury employment as per section 103(2). 9 [24] Accordingly, I find that the respondent's decision of 13 April 2010, as to the appellant's weekly compensation entitlement, was correct, and this appeal is therefore dismissed. DATED this 25 day of May 2012 # Ceallie M J Beattie District Court Judge