Cochrane v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 122 /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 GARY DOUGLAS COCHRANE of Waimate Appellant (Appeal No. DCA 43/99) 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 day of April 1990 APPEARANCE/COUNSEL J M Miller for appellant B Corkill for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The appellant has appealed against the decision of the Review Officer who confirmed the primary decision of the respondent that the appellant was not entitled to further cover under the Act because he unreasonably withdrew from a work trial required to be undertaken pursuant to his Individual Rehabilitation Programme. The background to the appeal is that on 14 April 1997 the appellant lodged a claim for cover with the respondent which was diagnosed by his doctor as "recurrent strain R wrist". His General Practitioner considered he was capable of performing selected 2 work and noted that this would be "light duties". The appellant was at he time employed as a freezing worker and that the problem with his wrist was caused when working at punching pelts. The respondent eventually accepted that the appellant had cover under the Act. The medical reports indicated that the appellant needed to undergo surgery of his wrist which was carried out on 3 September 1997. A report from the Surgeon, Mr W H Taine, on 31 October 1997 noted that the appellant's wrist would need to be immobilised for a prolonged period to prevent a further collapse of the bone. He considered the prognosis remained poor. Mr Taine's opinion was that the appellant would be unable to return to his previous duties as a sheep pelter and that at some stage he would require retraining once his wrist's condition had settled. On 20 November 1997 Mr Taine reported that the x-rays demonstrated that the lunate was fairly solid but had doubts as to whether it would remain so for a long period. He considered that the appellant could work with a splint avoiding jarring at impact. The employer advised the respondent that it was not possible to offer employment in a meat processing plant to a person wearing a splint. Thereafter, the respondent sought alternative options. Subsequently the appellant indicated that he considered that he could become self-employed with the result that the respondent delayed further investigations towards rehabilitation. On 2 June 1998 the appellant submitted a draft business plan for a self-employed option which was to undertake a rural contracting business to deliver a tractor service to farmers and other local people. It was accepted that the appellant, for a nominal sum, would take over a small business operation which had contract for the supply of rural equipment to local farmers. It was considered that the appellant would be able to drive a vehicle or tractor, answer phones and complete the necessary accounts without aggravation of his injury. When this scheme was proposed, his former employer advised the respondent on 9 July 1998 that it was able to offer the appellant a full time permanent storeman position requiring 40 hours work per week with some overtime at an hourly rate of $11.20. On 21 July 1998 the appellant advised the respondent that he declined to take the position because he considered it was not permanent and that he could earn more elsewhere during the off-season. He did not consider that the offer constituted rehabilitation. The respondent advised the appellant that it considered the position to be permanent and that it would train the appellant in the necessary qualifications to enable him to carry out the job as a storeman. The respondent advised the appellant that failure to take the position would amount to a failure to fulfil his obligation to undertake suitable rehabilitation. He was advised that he had seven days in which to notify the respondent of his decision and a failure to agree would result in a suspension of his compensation. It was subsequently agreed that as the appellant had reservations about his ability to carry out the job he would undertake a work trial for a period of four weeks commencing on 24 August 1998 working from 8.00 am to 5.00 pm each day. It was understood that he would receive on the job training and that the 3 respondent would provide a "top up" pay so that he would not suffer a loss of income. It was also understood that the progress of the trial would be reviewed at the expiration of two weeks. The appellant worked for four days but then did not attend on 1 September 1998. The appellant was examined by Mr Taine on 28 August 1998 when he reported that the wrist was performing satisfactorily but that the appellant's principal concern with the job trial was his educational standard. On 3 September 1998 the appellant notified the respondent that he did not wish to continue the work trial. The respondent notified the appellant that the Individual Rehabilitation Plan signed by him on 19 August 1998 required the four week work trial and that he had been offered assistance to overcome his doubts as to his educational abilities, an offer which the appellant had refused. The respondent then suspended entitlements pursuant to section 73(2) on the grounds that he had failed to comply with a requirement made under the Act. The appellant applied for a review of that decision. The Review Officer concluded that the appellant was physically able to carry out the work trial and that the Individual Rehabilitation Programme provided for a review after two weeks. He noted also that when the respondent raised the question of his literacy skills the respondent stated that it was prepared to assist with this problem. The Review Officer concluded that the decision of the respondent was correct and rejected the application at review. It is against the decision which the appellant now appeals. Mr Miller submitted that in making its decision on 8 December 1998, suspending entitlements, the respondent had applied the wrong test. He submitted that the appellant was incapable of undertaking the placement because of his intellectual and educational limitations in dealing with paperwork and figures. He submitted that the appellant's concerns are clearly relevant and that by suspending entitlements under section 73(2) for failure to comply with a requirement made under section 64(1)(g) that the placement did not constitute "rehabilitation" within the meaning of sections 3 and 18 of the Act. In support of this submission he referred to the decision in Kolo v ARCIC (14/94). He submitted that it was counter-productive to rehabilitation to place him in a position which would exacerbate the appellant's impairment, disability and handicap through stress. Mr Miller submitted that as the appellant's educational, intellectual and literacy handicaps were such as to make the work trial a nonsense, it would also cause further ill health through stress and embarrassment so that it was reasonable for the appellant not to participate further. He submitted that the Review Officer was wrong when he considered that the respondent was addressing the literacy problems which Mr Miller submitted was not a realistic approach for a mature man and which approach overlooked the stress, embarrassment and risk caused the appellant when placed in an environment with other persons who already had those skills. 4 Mr Corkill referred to the report of the Occupational Therapist, Ms L Thomson, dated 10 August 1998 and was prepared in anticipation of the proposed work trial. Under the heading of "Job Description", she stated: "Within the store, there are four separate jobs. Mr Cochrane would be given the opportunity to train in 3 of these areas, providing he was physically able to meet the requirements of all, as well as provide a satisfactory standard of work in other respects, eg; accuracy. Initially Mr Cochrane would be employed in the small store for up to two years, learning how the store operates." Under the heading "Job Requirements", it was noted that one of the requirements would be " checking accuracy against packing slips" which Ms Thomson said: "- This involves intermittent, minimal hand writing. - A high level of accuracy is required, but basic numeracy / literacy skills." She concluded her report by stating: "It is my opinion that this job could be done by a person with one arm / hand and basic literacy numeracy skills. Mr Cochrane has two arms, one hand and limited use of one hand. It is not a requirement that he work to speed, but accuracy is most important when keeping account of incoming / outgoing stock. It is a job which requires interactions with other staff and the ability to work well with others would be desirable." Mr Corkill referred to various memoranda on the file which resulted from exchanges between the Case Manager and the appellant in which the Case Manager noted the appellant's concerns but indicated the desire of the respondent to assist when necessary to obtain the necessary skills to do the job. Mr Corkill referred me to a summary on the file of the case notes recording the activity between the Case Manager and the appellant which indicated that at the time the work trial commenced the appellant had other stresses in his life, including a separation. He submitted that the case notes indicated that it was stress to the appellant was advised that he should allow more than one week of the trial in order to learn the required tasks and to accept the tutoring offered by the respondent. Mr Corkill submitted that Mr Miller's basic submission that the appellant's educational, intellectual and literacy handicaps rendered the work trial a nonsense was not supported by the evidence. He submitted that in respect of the business plan which he had previously confirmed the appellant would have had to undertake certain written work while the nature of the writing involved in the work trial appeared to be dealing with numbers and provisions with an insignificant amount of writing. He submitted that the respondent was prepared to offer relevant tutoring in order to 5 ascertain the appellant's competency for the proposed position at the completion of the four week work trial. I consider that while the appellant has submitted that the job which would follow the proposed work trial was a "made up" position by his employer, that is not really the issue on appeal. The issue is whether in the process of rehabilitation, the respondent reasonably required the appellant to undertake a work trial in an endeavour to terminate or reduce the extent of any impairment, disability or handicap he may suffer. I do not accept Mr Miller's submission that the proposed position did not amount to an attempt at rehabilitation. The evidence demonstrates that the appellant was not able to return to his previous position as a pelter but that he was able to undertake light work. The evaluation of the position as assessed by Ms Thomson was that it was within the appellant's ability to carry out the work and that the literacy and numeracy skills required were of a limited nature which she considered he could perform. When he made complaints about the inability to do this work because of the lack of those skills, the respondent offered to assist by way of tuition. Furthermore, it does appear that the nature of the work would have been even more within his capacity than that proposed in his programme for self-employment. While Mr Miller submitted that his limited ability in numeracy and literacy skills would cause the appellant stress in the work area with other persons already having those skills, my concern is that there is no evidence of that, particularly as the appellant remained on the job for only four days. He did not even complete the initial two weeks after which the review of the position would be undertaken. If he had he worked for the two weeks and a review had demonstrated an inability to cope with the work then no doubt the Individual Rehabilitation Programme would have been reviewed. However, the appellant chose to disregard the attempted rehabilitation without demonstrating his own willingness to achieve rehabilitation. In the circumstances I consider that that constituted an unreasonable refusal. I consider that the respondent and the Review Officer came to the correct decision. The appeal is dismissed. DATED at WELLINGTON this (4th day of May 1999 A W Middleton District Court Judge dca43-99.doc (nr)