Beadle v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 113 /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN CORAL DAWN BEADLE of Wellington Appellant (Appeal No. DCA 536/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WELLINGTON on the 27th April 1999 APPEARANCE/COUNSEL J Miller for appellant B Corkill for the respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the review officer was correct in holding that the appellant had unreasonably refused to comply with a requirement under the Act which entitled the respondent to decline to make her further payments of compensation. The background to the appeal is that in December 1988 the respondent accepted that the appellant was entitled to cover for an injury diagnosed as left carpal tunnel syndrome. The first medical certificate indicated that the appellant was then 2 employed as a journalist and that the problem arose out of her use of a typewriter. The first medical certificate issued by her general practitioner on 8 November 1988 indicated that the appellant was then available for selected or alternative work from 7 November 1988 with the restriction that she "must significantly reduce amount of time spent at keyboard & take adequate breaks. Surgical opinion being sought." The respondent provided various types of assistance to the appellant. In March 1989 the respondent was advised that the then diagnosis of the appellant's complaint was nerve bilateral tendonitis. Between 20 May 1989 and 7 May 1998 the respondent paid the appellant earnings related compensation on the basis that she had suffered a gradual process injury to her left hand and wrist. On 24 June 1997 the respondent requested the appellant's then general practitioner to provide information regarding the current status of her treatment and her prognosis. Her general practitioner recommended an assessment of her condition by a specialist in the area of chronic OOS and reflex sympathetic dystrophy. On 4 December 1997 the respondent requested the appellant to sign a consent form to enable the respondent to have the appellant's condition assessed by Dr C Walls, an OOS specialist. The appellant then advised the respondent that before she would complete the consent form she required further information regarding Dr Walls' expertise. The respondent provided this information on 24 December 1997 to which the appellant replied by facsimile requesting further information regarding Dr Walls and in particular his expertise in the area of "VOC-OOS". The respondent advised the appellant that it was prepared to meet the cost of the appellant's travel to Auckland for the purpose of examination and assessment by Dr Walls who the respondent considered to be a recognised authority in respect of overuse problems. The respondent also advised the appellant that so far as it was concerned the only injury for which she had cover was OOS and did not include chronic VOC. On 21 January 1998 the appellant completed the consent for release of relevant information to Dr Walls to whom the respondent then provided the medical reports held by it and arrangements were made for an appointment for the appellant to attend on Dr Walls. Thereafter, the appellant requested a postponement of the appointment because her health had deteriorated and a new appointment was made for late February 1998. On 23 February 1998 the appellant then wrote to the respondent stating that she objected to the referral to Dr Walls because she did not consider, on the basis of her investigations, that he had the necessary expertise to make an assessment of her condition. She again repeated her claim that in addition to suffering chronic OOS she also suffered voice-computer OOS brought about by her use of a voice activated computer. The appellant attended Dr Walls on 26 February 1998 as a result of which he issued a report dated 1 March 1998. Dr Walls' report notes, inter alia: "Briefly she was working at the Wellington Evening Post when a new and somewhat difficult computer layout programme was introduced. She began to develop musculoskeletal symptoms that deteriorated, her mood was affected and she had to give up work and seek treatment. 3 As her condition progressed she developed fatigue and her daily living activities were affected. ACC had purchased a voice activated computer system to enable her to work but she developed marked voice and breathing problems that have hindered her use of this machine. No treatments have been found to be helpful. There is no family or medical history of note apart from that recorded above and in the accompanying letters. She described herself currently as severely disabled. She can carry out daily living activities (dressing, feeding, washing etc) for only 3 or so hours per day on a good day before coming so fatigued that she must rest. She is unable to type or write because of pain. Her voice will not tolerate any prolonged use. On examination she was an adult European lady in no obvious distress. She became quite angry at times either with the process or me. She was able to walk freely when she chose and gesticulate to emphasise her opinions. There was a full range of movement of her neck, shoulders, elbows and wrists though this was reported as being accompanied by some discomfort. There was no muscle wasting. There was no arthritis or arthralgia. There was no muscle fascicularion. Her Phalen's and Tinel's signs for carpal tunnel syndrome were negative. The Finklestein's test for De Quervains tenosynovitis was negative. Grip strength was reduced bilaterally. Reflexes were normal to examination. There were no significantly tender tender points on examination. . There did appear to be a small firm, regular nodule in the R thyroid lobe. This will not be connected to her condition or be a cause or consequence of her voice problems. In answer to your specific questions: 1 Current clinical diagnosis Ms Beadle appears to have a chronic pain syndrome. This may have been initiated by workplace conditions but has now little connection to the initiating circumstances. I do not accept her diagnosis of 'voice OOS'. OOS is a term used to describe a collection of conditions that can arise from workplace conditions (as well as arising spontaneously). I would suspect that any vocal problems she may have a more routine otolaryngological diagnosis and be related to inappropriate voice techniques. As Ms Beadle pointed out I am no psychiatrist but I have been in clinical practice for 23 years. I think Ms Beadle has become dependent on her condition so that her impairment (chronic ongoing pain) has caused a disability (the inability to work) which has left her handicapped. She now lives the life of an invalid if her replies to 4 my questions are accurate and not coloured by her anger at the process she was involved in. 2 Is this condition wholly or substantially contributing to this incapacity? There is some discrepancy between the description of extreme handicap described by Coral and her physical examination. Someone only able to move about for three hours per day and requiring wheelchair assistance should have considerably more muscle wasting and loss of function that was evident on my examination. Chronic pain is not a condition which medicine has a lot of answers for at this stage. People with this condition do best who maintain function. This is often best achieved not by medical interventions but by learning behavioural techniques that allow function to be maintained despite the pain. Although I think her pain would be contributing substantially to Coral's current incapacity the extreme degree described to me (if not exaggerated) is a consequence of her self management of this impairment. 3 Clinical findings on examination Nil apart from poor muscle tone. The possible thyroid nodule should be investigated if her general practitioner thinks this is appropriate. 4 Current restrictions Coral's current restrictions are as she has described. The challenge for her and for ACC is to remove these restrictions and return to a more normal manner of life. 5 Further rehabilitation strategies I would suggest the following: . She be referred for an otolaryngological examination of her vocal courds (sic). This will exclude any correctable reason for her voice and breathing problems. Coral consults her GP as to the presence and need for further investigation of her R lobe of the thyroid. ACC refer her to a pain management course such as is run by the Auckland Healthcare Pain Clinic. The purpose of this course is to improve her function by teaching her pain coping strategies. That ACC organise a short, supervised 'return to fitness' programme to improve Coral's muscular abilities. That a reward/disincentive programme be negotiated with Coral so that she receives positive rewards for regaining some work functions and paid 5 employment. If this is unsuccessful then Coral should be considered, if that is appropriate, for the work capacity evaluation programme. 6 Recommended treatment & proposed outcomes See above. The proposed outcome must be a loss of the current handicap and a return to as full a life as Coral wishes. 7 Prognosis? I do not think the prognosis is good. This condition and the behavioural/cognitive sequelae are well entrenched. It is my opinion that if this rehabilitation fails then the logical agency to care for Coral is Income Support. This is not a medical decision but a legal and management decision.' The respondent then requested the appellant to consent to it discussing Dr Walls' report and recommendations with her general practitioner, but she declined to give this consent. The respondent and the appellant then engaged in a long bout of correspondence in which the appellant noted her objection to Dr Walls' qualifications and the manner in which he had carried out his examination. In the result, the respondent notified the appellant that she had three choices being, 1. that she authorise her general practitioner and the respondent to meet to discuss the case with her being present with any representative of her choice; or 2 . that she should advise the respondent of any new general practitioner appointed by her who could attend such a meeting; or 3. that she could attend for a further specialist examination by another specialist, such examination to be at the expense of the respondent. Thereafter, again followed extensive correspondence between the parties in the course of which the respondent provided the appellant with lists of registered occupational assessors in both the North and South Islands. On 22 April 1998 the respondent offered to meet the appellant to discuss the concerns which she had raised about the unavailability of appropriately trained assessors. The respondent made it clear to the appellant that it would be prepared to consider any specialist of her choice in order to reach some finality. The respondent insisted that the appellant should advise her choice of options by 6 May 1998. The history of this impasse shows that it took place over a period of some 8 weeks and as no confirmation was received from the appellant by 6 May 1998 the respondent issued a decision in 8 May 1998 advising the appellant that pursuant to s.73(2)(a) of the Act, it considered that the appellant no longer met the criteria of s.37 and that in addition pursuant to s.73(1) it considered that the medical information available to it indicated that she had a capacity to work. She was accordingly notified that further payments of 6 compensation would cease from 7 May 1998. The appellant applied for a review of that decision. At the review hearing the appellant's counsel, Mr Miller, had produced a report from Dr J Aranui-Faed who is a general practitioner and a member of the Royal Australian and New Zealand College of Psychiatrists. She is also a sexual abuse counsellor who has worked in this area with the respondent. Dr Aranui-Faed considered that she had the necessary expertise to confirm the continuing diagnosis of OOS. The review officer found that the decision of the respondent under s.73(1) could not be sustained but upheld under s.73(2) on the grounds that the appellant had unreasonably failed to comply with the respondent's requirements made under s.64. It is against that decision which the appellant now appeals. In his submissions Mr Miller asked the Court to take into account the fact that the appellant suffered a serious disability which has handicapped her to the extent that a great part of her focus in life is on that disability. He submitted that because of that factor the appellant's concept of what was "reasonable" should be considered having regard to her particular characteristics. He submitted that because of her disability the appellant considered that in completing the consent form she was giving away her last element of control by consenting to an assessment by a specialist who may not have the necessary expertise. He submitted that in addition the Court should have regard to the fact that the appellant had obtained a medical certificate dated 19 April 1998 prepared by Dr J Shepherd, a doctor in Wellington who had previously known the appellant but had prepared the certificate on the basis of a video of the appellant undergoing her normal routine. He submitted that as Dr Shepherd's diagnosis was chronic OOS/VOC-OOS that should have satisfied the respondent's requirement for medical certification. He submitted further that that certificate taken with the report of Dr Aranui-Faed should have certainly satisfied the respondent to the extent that it could have reinstated her cover. Mr Corkill submitted that the issue is not the nature of the appellant's condition but whether or not the review officer was correct to hold that she had unreasonably failed to comply with a requirement of the respondent made pursuant to s.64 of the Act. He submitted that the reference to VOC-OOS was not part of the appellant's claim and the only issue was the issue of whether or not she was entitled to continued cover for nerve bilateral tendonitis. Mr Corkill submitted that by reference to the substantial correspondence between the appellant and the respondent between 17 March 1998 and 8 May 1999 it was obvious that the respondent was doing everything possible to assist the appellant and to meet her requirements. He submitted that the correspondence demonstrated a sensitivity on the part of the respondent to the appellant's position and its desire that she should not be deprived of the opportunity to have an examination by a specialist of her own choice. The issue is whether or not in terms of s.73(2)(a) the appellant has unreasonably refused to comply with a requirement of the respondent. Section 64 sets out the responsibilities of a claimant as: 7 "Responsibilities of claimant. 1. Every person who claims for or is in receipt of any rehabilitation, compensation, grant, or allowance shall, when reasonably required to do so by the Corporation - (a) Give to the Corporation the prescribed certificate of a registered health professional as to such matters, and containing such information as the Corporation requires: (b) Furnish to the Corporation such other relevant information as the Corporation requires: (c) Authorise the Corporation to obtain medical and other records which are or may be relevant to the claim: (d) Undergo examination, at the expense of the Corporation by an appropriate registered health professional specified by the Corporation for the purpose: (e) Undergo assessment of impairment, disability, or handicap at the expense of the Corporation: Undergo assessment of present and likely capabilities for the purposes of rehabilitation at the expense of the Corporation: (8) Take action by way of rehabilitation in order to endeavour to terminate or reduce the extent of any impairment disability or handicap.' The report from Dr Walls to which the appellant took exception demonstrated to the respondent that the appellant's principal problem was chronic pain syndrome which he considered may have been initiated originally by workplace conditions but had subsequently developed beyond that. He did not accept the appellant's diagnosis of "VOICE-OOS" which appears to have been a self diagnosis. Dr Walls' opinion was that her pain problem was exaggerated by her own health management. When the appellant objected to Dr Walls' finding, the interchange of correspondence was initiated. I am satisfied on reading that correspondence that the appellant was endeavouring to avoid complying with the request of the respondent to consent to examination by a registered health professional because of her concern that she might lose her entitlement. The requirement of s.64(1)(d) is that the responsibility of the appellant is to undergo an examination "by an appropriate registered health professional specified by the Corporation" (emphasis mine), and the file clearly indicates that after the examination by Dr Walls who was specified by the respondent, the respondent lent over backwards to enable the appellant to undergo another examination by a specialist of her choice and at the expense of the respondent. There was no need for the respondent to offer this choice but I agree with Mr Corkill that this constituted clear evidence of the sensitivity by which the respondent endeavoured to assist the appellant. While I am conscious of Mr Miller's entreaty that I should have regard to the appellant's focus on her disability when considering whether or not her refusal was unreasonable, I must also take into account that the appellant is a journalist and the very nature of the correspondence which she has provided indicates that she does understand and has a very strong knowledge of the English language and was fully aware of the nature of the request being made by the respondent. I consider that the 8 appellant deliberately obstructed the respondent, probably through the fear that another specialist would reach the same opinion as Dr Walls. I can see no reason why the Court should interfere with the decision of the review officer which is hereby confirmed. The appeal is dismissed. DATED at WELLINGTON this 4th day of May 1999 A W Middleton District Court Judge dca53698(rd)