Schoonderwoed v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 149 199 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN HELEN ANN SCHOONDERWOED DCA 318/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 15th day of April 1999 APPEARANCES Ms H Ellis, counsel for appellant Mr D Tui, counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the respondent was correct to cancel the appellant's entitlement to weekly compensation, effective as of 2 July 1996, by its decision of 6 October 1997. 2 Background In July 1989 the appellant suffered a back strain whilst lifting a laundry basket. At the time of this accident she was employed part-time as a housekeeper at the Sheraton Hotel. At the time of her accident she was working between 20 and 30 hours per week. At the time of her injury the appellant also had employment as a telemarketer with a marketing company and this employment continued and the appellant received weekly compensation based on her reduced capacity for work, it being certified that she was unable to resume her employment as a housekeeper at the Sheraton Hotel. It seems as though the appellant may have obtained other part-time employment working in a china shop and again abated weekly compensation was paid, taking account of the income from that source. In April 1996 the appellant was receiving weekly compensation in the sum of $244.00 per week and it was noted that the respondent had no particulars of her present residential address. It required particulars from her for the purposes of ongoing rehabilitation. The appellant was requested to supply her residential address and she refused to do so and on the basis of that refusal the respondent ceased payment of weekly compensation from 17 April 1996. That decision to cease compensation was taken on review, where it was confirmed, and then to appeal before His Honour Judge Middleton. In his decision His Honour ruled that providing the appellant did disclose her residential address she was entitled to have her weekly compensation reinstated, and His Honour directed that weekly compensation again commenced as from 2 July 1996. It seems as though quite separately the respondent had been carrying out enquiries about the appellant's employment activities and it had in its possession certain information that the appellant was carrying on a business of house cleaning for various clients. W Accordingly, on the basis of that information, contending as it did that the appellant was no longer incapacitated, it advised the appellant in its decision letter that it would not be reinstating weekly compensation, but rather that such compensation was being cancelled pursuant to section 73(1) of the Act, whereas before the decision to suspend had been made pursuant to section 73(2) of the Act. The appellant sought a review of that decision and the review hearing took place on 18 June 1998. At that hearing the appellant and her GP, Dr Eggleston, gave evidence. Dr Eggleston had examined the appellant on 24 July 1996 and confirmed that she was continuing to suffer from chronic lumbar pain and that she was being treated by physiotherapy, acapuncture and chiropractic. He advised that her restrictions on work consisted of standing, sitting, stretching up or across, repetitive movements, bending, squatting or crouching, twisting body or neck, heavy lifting, pulling or carrying and driving. He advised that her capacity for work was "to work as is able according to pain, about 12 hours weekly at present. " He indicated that that certificate would be effective for three months. At the review hearing the respondent produced a transcript of the prosecution which had taken place in February 1998 where the appellant had been convicted on charges under the Act of failing to provide details of income. In those notes of evidence it was established that in the latter part of 1994 and the early part of 1995 the appellant was engaged in private house cleaning work for various private residences in and around Auckland. The evidence given by the ladies who employed her was that she worked for three or four hours one day a week doing all the usual household chores including vacuuming, cleaning the bathroom, kitchen. In the evidence it was stated that in multi-storey homes where she worked she was required to lift heavy vacuum cleaners upstairs. It was also stated that the cleaning of floors and bathrooms was done from a kneeling position. 4 The tenor of the evidence given was that the appellant was able to do this work without any discernible discomfort and all persons who employed her were most satisfied with the standard of her work. Relevant to that evidence was the fact that at the time that the appellant was doing that housework her GPs, Dr Ng and Dr Eggleston, were issuing certificates to the respondent certifying the appellant as being fit for selected alternative work which did not include repetitive work, bending, lifting or prolonged sitting. In his decision the Review Officer accepted that Dr Eggleston had given his evidence in good faith but nevertheless the Review Officer was of the view that the appellant was able to function at a higher level than was conveyed to him. He quoted from a publication "Medical Assessments of Injuries for Legal Purposes" by Arnold Mann, where he adopted that author's conclusion: After a severe injury to a shoulder, a workman may complain that he finds he is unable to do pick and shovel work. The medical expert witness will generally be forced to state the patient's complaints are consistent with the findings. However such an individual may in fact be currently engaged in precisely the kind of work which he states he is unable to perform The determination of the veracity or otherwise of an applicant in such circumstances is more properly within the province of private investigators. It is certainly not the problem of the medical expert witness. The Review Officer found that on the basis of the evidence of her ability to do the housework, she had demonstrated a capacity to do the type of work that a housekeeper employed at the Sheraton was required to do, and she had demonstrated her capacity to work. He ruled that the appellant had not discharged the onus of proof that she was incapacitated. Relevant statutory provisions Section 37A(2) of the Act 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 the employment in which the person was engaged when the personal injury occurred. 5 Section 73(1) of the Act states: The Corporation shall, if it is not satisfied on the basis of the information in its possession that a person is entitled to continue to receive any... compensation under this Act, suspend or cancel that payment of compensation. Submissions Ms Ellis, counsel for the appellant, submitted that the information on which the respondent relied for its action under section 73(1) was the information of her part- time house cleaning which she had been doing on an ad hoc basis in late 1994, early 1995, until that activity was discovered and prosecutions initiated by the respondent. Counsel submitted that that period was well prior to the cancellation date, July 1996, and that the cancellation date is the relevant date. She submitted it was the appellant's physical condition at that time which was relevant. Counsel submitted that the evidence of Dr Eggleston was that she was incapacitated, and that evidence must be accepted. Mr Tui, counsel for the respondent, submitted that the medical certificates issued at or about the time of the appellant doing her house cleaning work in late 1994, early 1995 indicates that the appellant had demonstrated an ability and capacity to do work which those doctors, certifying in good faith, have nevertheless certified she was unable to do. In those circumstances, he submitted, medical certificates must be looked at with caution. He submitted that the issuer would be heavily reliant on the word of the patient and in this case the word of the patient was suspect, particularly in the light of her conviction for offences under the Act. Counsel submitted that the onus was on the appellant to establish that she had a continuing entitlement to weekly compensation and that the onus was not on the respondent under section 73(1), providing the respondent did have evidence which it could show satisfied it. 6 Counsel submitted that the evidence of the appellant being able to do four hours of work which certificates said she could not do, is sufficient to have those certificates not accepted. Decision For the purposes of my decision I think it important to consider the relevant chronology of events which have shaped matters, down to the decision of the respondent to cancel the appellant's entitlement in October 1997. The appellant has always had an ability to perform certain work tasks and did have two jobs at the time of her back injury. The evidence is that she continued on with her cosmetic marketing work, which work was not affected by the restrictions of her injury . It seems evident that the respondent had concerns about the appellant's work and income therefrom with the various part-time positions she had, and howsoever it came about the respondent, through its investigators, learned of the appellant's purported house cleaning work and it interviewed the various house owners for whom the appellant had worked and obtained statements from these people. It seems that by mid 1996 the respondent was in possession of this information and as a precursor to taking any action on it, it had suspended her entitlement to weekly compensation because of her refusal to provide a residential address. It was that issue and that issue alone which His Honour Judge Middleton considered, and he made an order that if she did supply her address then she ought to have her weekly compensation reinstated. I note that His Honour was not made aware of any of the other issues which were being looked into by the respondent and no question of entitlement was in issue before him, he being solely concerned with whether the respondent was correct to suspend her weekly compensation for her refusal to supply her residential address. When the decision was made by His Honour Judge Middleton that the appellant ought to have weekly compensation reinstated if she provided her address, the respondent then determined to thereupon raise for the first time the question of the appellant's entitlement to weekly compensation, and referring to the evidence it had obtained against her relating to her house cleaning work carried out in late 1994 to mid 1995. It is to be noted that Judge Middleton's decision was delivered in April 1997 but it was not until October 1997 that the respondent issued its decision letter to the appellant advising her that her weekly compensation was cancelled on the basis that she had demonstrated a capacity to work and that she was no longer entitled to receive weekly compensation in those circumstances. The decision letter advises that the cancellation was not to take effect from the date of the letter but rather to the date that His Honour Judge Middleton had directed that weekly compensation be reinstated from, namely 2 July 1996. In those circumstances I find that it is that date which is the relevant date for the respondent to have information in its possession that the appellant was no longer entitled to continue receiving compensation. Having considered the respondent's file and having regard to the submissions of both counsel, I find that the information which the respondent had which pertained to the relevant time consisted only of medical certificates issued by Dr Eggleston certifying her unfitness for the house keeping work, and advising she could only do part-time work of up to 12 hours per week, if the pain permitted. I have considered the transcript of the evidence taken at the review hearing, particularly that given by Dr Eggleston. He was directed to the medical certificate that he issued on 24 July 1996 and he confirmed the contents of that certificate to the effect that the appellant was only able to do light work of about 12 hours per week. Dr Eggleston was asked whether her condition had changed since then and he said it had for the worse, caused by the stress associated with the prosecution and her ongoing battles with the respondent. 8 The doctor was cross-examined quite specifically on the question of the appellant's capacity as of July 1996 and he was clear from his examination of her that she was only able to do light duties with the restrictions he had indicated in the certificate, and that the amount of hours per week would be as stated, namely 12. The respondent did not seek to adduce medical evidence, either to the Review Officer or to this Court, relating to the appellant's medical condition as at July 1996. The respondent did refer to a medical report of Mr OR Nicholson, Orthopaedic Surgeon, of August 1994, wherein she reportedly said to him at the time of his examination of her, that she could only do small amounts of housework and she had difficulty with ironing, vacuuming, hanging laundry on the line and standing. It is to be noted that Mr Nicholson states: As Ms Schoonderwoed has not been in full-time work for over four years, the chances of her returning to full-time work must be considered small in the ---1- prognosis likely to be poor. Until Ms Schoonderwoed gains confidence in her ability to cope with a job and to occupy herself by returning to work her symptoms are likely to persist. There is certainly nothing in Mr Nicholson's report which would indicate that the appellant was able to return to her pre accident employment or carry out the duties she hitherto had done. The Court accepts the evidence which had been presented in the criminal prosecution of the appellant that she had been engaged in ad hoc house cleaning work for various persons. The amount of that work would not seem to be more than 12 hours per week, and whilst it consisted of normal household chores, the evidence from each of the witnesses was that the appellant did this work for between three to four hours per day, one day a week at most. The Court must not lose sight of the fact that the appellant was prosecuted for her failure to advise of this work but that the finding of her undertaking this work did not in any way amount to a finding of capacity under the Act. Furthermore, I note that that work was carried out some 18 months before the time when the respondent contends the appellant had gained capacity. 9 Whilst the Court may accept that the respondent believed it was in possession of information which justified its decision to cancel, that information is able to be scrutinised if the correctness of it is questioned. In this case the appellant has questioned that evidence and has produced medical evidence in the form of her GP who has not only given oral evidence of her continuing incapacity to return to her pre accident employment but also certified to that effect at the relevant time. In the face of that evidence I find that this Court would require medical evidence which demonstrated to the contrary and that this Court cannot make an inference on such a medical matter merely from historical evidence that the appellant was able to do certain house cleaning chores some 18 months earlier. In the chronology of this case it is a fact that the respondent did not even have any medical evidence contemporaneous with its decision to cancel and backdate it. It had further certificates from Dr Eggleston to the effect that the appellant's condition remained the same, yet it chose not to have that investigated from a medical aspect, it seeming content to rely on the historical evidence of witnesses talking of events in late 1994 and early 1995. In those circumstances I find that the Court is entitled to rely on the evidence of Dr Eggleston, in the absence of any medical evidence to the contrary, and that having regard to his evidence, the appellant's partial incapacity was present at the time when the decision to cancel was made and at the time from which that cancellation was to have effect. Accordingly then I direct that the decision of the respondent to cancel the appellant's entitlement to weekly compensation from 2 July 1996 be revoked. 10 The appellant is entitled to costs which I fix at $800. DATED at WELLINGTON this 15day of June 1999 M J Beattie District Court Judge 318.98Schoonderwoed.doc