Butler v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 18 /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 GLENN BUTLER of Kawakawa Appellant (Appeal No. DCA 271/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD at WHANGAREI the 19th day of May 1998 APPEARANCES T Singh for appellant D Tui for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the decision of the respondent to cease the appellant's payment of weekly compensation from 31 May 1996 was correct. In July 1993 the appellant lodged a claim with the respondent for cover in respect of an injury to his right groin and left knee which had occurred when he was working on a slope and lost his footing. At the time the appellant was employed as a Linesman by Telecom New Zealand Limited. On 12 July 1993 the appellant's General Practitioner, Dr C Luen, issued a certificate certifying that the appellant was fit to resume normal work from 12 July 1993. Subsequently in January 1994 the respondent approved private hospital treatment for an arthroscopy to be conducted on the appellant's knee. 2 On 7 February 1994 Dr Luen certified the appellant unfit for work for three days. The arthroscopy operation was conducted on 10 February 1994 and until he returned to work on 28 February 1994 the appellant was certified by Dr Luen as being unfit for work and received weekly compensation. On 10 March 1994 the appellant informed his employer that he intended ceasing work with it and proposed applying for weekly compensation from the respondent until he obtained another job. The appellant indicated that he proposed to take voluntary severance and in his undated application to his employer stated: "I would like to put my name forward for severance because due to a recent knee injury I have sustained it is in my best interests to find another job which would not put as much strain on my knee. While the injury will not in any way affect my ability to do my job efficiently or safely the degenerative nature of the injury will start to affect my quality of life as I grow older, but given my present financial circumstances I will not be leaving Telecom unless I get severance. I would like to stress that there is absolutely no medical reason that I am unable to work at present, it is my future well being and quality of life that are the reasons for this request given the fact that the Telecom customer field force is presently downsizing.' A file record notes that the appellant approached an Officer of the respondent on 10 March 1994 requesting an entitlement form as he said that he was off work and had only worked for three weeks since his accident. On the same day Dr Luen provided a letter in which he stated that he considered that because of the problems with his knee and the associated pain the appellant had to resign from his post as a technician with Telecom. Dr Luen indicated that he did not consider that the knee would get better and that the appellant was only suitable for work which was not weight bearing. Subsequently at the request of the respondent Dr Luen stated that the appellant's problem in relation to his left knee was that he could not kneel for anything but short periods which often occurred in his previous work nor was he able to climb ladders or steps without pain but that he could stand erect or sit for long periods. Dr Luen considered that the knee would not recover but that it would progress towards secondary osteoarthritis. Dr Luen also noted that while the knee had improved, recovery was not complete and although the appellant had persevered the pain in January 1994 demonstrated a significant deterioration. In a report from Mr Cullen, the appellant's Surgeon, he said: "... As you will have seen from the arthroscopy note this man has significant damage to the articular cartilage of the medial femoral condyle. Both menisci are normal and stable and the ligaments are stable. In view of this it is likely that this man will have intermittent long term problems in the knee. However, I have discussed this with him and have reassured him that there is nothing in there which is surgically correctable." 3 The appellant had left his position with Telecom and after the appellant was notified of the cessation of weekly compensation he provided a statutory declaration on 23 May 1996 in which he explained the reason for the wording of his severance notice as: "On the advice of a union representative I included the statements "while the injury will not in any way affect my ability to do my job efficiently or safely, the degenerative nature of the injury will start to affect the quality of life as I grow older" and "I would like to stress that there is absolutely no medical reason why I am unable to work at present." These statements are not correct but were included in the letter because it was the opinion of my union representative that if Telecom was aware of my true state of health then they would have dismissed me as unfit for duty and I would not have received any severance pay out. I would also like I noted that my ACC Case Manager Colin Brown was in possession of this letter from the time it was given to my employer." The respondent then obtained a statutory declaration from Mr R Urwin dated 10 June 1996. Mr Urwin was the Team Manager for Telecom New Zealand at that time. In his declaration Mr Urwin confirmed that the appellant had applied for voluntary severance in 1994, at which time the employer was in the process of downsizing its business and that preference was given to the employees who wished to apply for voluntary severance. On that basis the appellant's contract with the company ceased on 31 March 1994. Mr Urwin then stated: "Mr Butler was not incapacitated from work at this time as he had previously returned to full duties from ACC. There were alternative job options within the company which Mr Butler could have applied for which did not involve climbing a ladder, had he wished to do so. Mr Butler's medical condition was not a factor in his request for voluntary severance and he applied of his own free will when the option was made by the company." In a further report from Dr Luen on 22 July 1996 he noted "painful disability was the reason proposed for his resignation. I am unaware if he was offered suitable alternative placement. A recovery was not expected and a slow degenerative deterioration would be medically consistent." A subsequent letter from Mr Urwin dated 16 September 1996 confirmed that the appellant had been doing his normal duties at the time when he applied for voluntary severance and it appeared that he was one of the first to ask for it. Mr Urwin stated that "all staff had the opportunity to apply for voluntary severance and leave the company or elect to stay, and remain with the company. The majority of staff who elected to stay, are still with the company today." In a subsequent medical report dated 7 April 1998 from Dr T Testa, the appellant's current General Practitioner, confirmed the presence of degenerative changes which restricted the appellant's ability to climb ladders. However, he went on to say: "I therefore say that this patient is still fit to do work, however as long as that work doesn't include using the knee excessively like climbing up ladders which may endanger his life ... as I have continuously referred in my referral letters that I felt that this man's weight has been increasingly markedly and does I am sure play a part in the pain that he is getting in his knee at this moment in time." A letter from Mr Urwin to the respondent on 21 April 1998 indicated that he had observed the appellant carrying out his normal work as a fault repair serviceman for Telecom. Mr Urwin considered that the appellant did not appear to have been suffering any difficulty in carrying out the work. When the respondent issued its decision to cease the payment of weekly compensation the appellant applied for a review of that decision. In his decision the Review Officer referred to the various reports to which I have already made reference. The appellant gave evidence before the Review Officer in which he confirmed his complaints of problems using ladders because of the pain in the knee. He also told the Review Officer that there were no alternative duties which did not involve the use of ladders. The Review Officer referred to the decisions of the Court in Eason (28/94) and Broome (117/97) which he considered assisted him in making the decision to confirm the respondent's decision to cease the payment of weekly compensation. It is against that decision which the appellant now appeals In an affidavit filed in support of the appeal the appellant takes issue with Mr Urwin's statements that he had seen him working because Mr Urwin had only been on site on very rare occasions for short periods of time. He also stated that on a number of occasions he had applied for alternative work which would not place strain on his knee. Mr Singh submitted that the appellant wished to obtain employment in which his knee would not cause him problems and he relied on the advice of his Union Representative to apply for severance and in doing so was advised that he should not indicate that the severance was as a result of medical reasons. He submitted that the medical evidence clearly indicates a difficulty to perform some of the normal tasks in which he had been involved with his work with Telecom, particularly in relation to climbing steps or ladders. He submitted that on the basis of the correspondence supplied with the appellant's affidavit in support of the appeal, alternative work could have been found for the appellant within the Telecom organisation. Mr Singh submitted that the statement made in the application for severance is completely at odds with Dr Luen's finding that the appellant had a "painful disability was the reason proposed for resignation" Mr Tui submitted that in reliance on the decision in Eason this appellant was in a similar position to that appellant in that he was substantially able to carry on his normal employment, albeit with some pain, and was therefore not entitled to the payment of weekly compensation. He submitted further that the respondent relied on the decision in Broome in which that appellant had continued working after a neck injury but then accepted redundancy rather than continue employment in a different position. 5 While the appellant takes issue with Mr Urwin's statement as to his physical ability to carry out work it is clear on the evidence that he did return to his normal duties with Telecom and although he suffered pain on occasions, when undertaking some of the work, he continued to carry out that work until the opportunity to take severance arose. The medical reports indicate that while the appellant suffers some degenerative in the knee it may get worse. Dr Luen clearly recognised that he was capable of doing some jobs provided this did not involve too much climbing of steps or ladders. Dr Luen considered that a change of job may have been more appropriate but the appellant appears to have carried on with his work until the opportunity to take severance arose. While the appellant claims that the nature of the severance application was dictated to him by the Union Representative, it clearly indicated a belief that his application was not based on his medical condition. Dr Luen was at that time certifying him as being fit to carry out his work although he considered that alternative duties may have been more appropriate. However, as the Court held in Eason that appellant was able to carry out his job albeit with some pain which is similar to the position of this appellant . This appellant's position is also similar to that of the appellant in Broome who also carried on with her work in spite of pain until she was able to take severance and the Court concluded the severance in those circumstances was not the result of her injury. On an overall view of the evidence available, I do not consider that the reason for the appellant leaving employment with Telecom was because of his injury. He was carrying out his normal work for which Dr Luen certified he was capable but when the opportunity to take severance was offered he accepted it. His position is remarkably similar to that of the appellant in Broome. I consider that the Review Officer came to the correct decision on the evidence and it should not be disturbed. The appeal is dismissed. DATED at WELLINGTON this 4 day of June 1998 bukuadila A W Middleton District Court Judge dc271-97.doc (nr)