Edwards v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT ROTORUA Decision No. 78 / 96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND 58 /96 / 2512 IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JOSEPH EDWARDS of Rotorua Appellant (Appeal No. DCA 155/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 27th day of August 1996 APPEARANCES Mr MS Lake for appellant Mr J Lee for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the respondent was correct in its decision of 5 March 1996 to cease payment of weekly compensation to the appellant. The facts which give rise to this appeal are that the appellant who was then employed as a prison officer at the Rangipo Prison in Turangi injured his neck and left shoulder while playing rugby in August 1994. The respondent accepted that the appellant had cover under the Act and he was paid weekly compensation. In a report dated 4 October 1994 Dr Liaw considered that the prognosis for recovery from injury was good and that the appellant's condition would improve and that once he had recovered he could return to work as a prison officer. 2 On 16 February 1995 Mr D V Stanley-Clarke, an orthopaedic surgeon, reported to the respondent: "Mr Joseph presented to me with a problem related to his neck and left sided brachalgia. My clinical diagnosis was that of a C.5/6 cervical disc lesion. He was seen by me initially in 1993 with this injury and it settled fairly soon following conservative treatment. He consulted me once again in relation to this in November 1994 when he had re-injured the neck. We proceeded to a C.A.T. scan and myelogram as conservative treatment as that point in time did not seem to be helping him at all. The C.A.T. scan and myelogram showed no significant impression of the thecal sac or any significant cut off of the nerve root, that is to say no significant surgical amenable lesion in the cervical spine. There is some evidence of a change at the C5/6 level indicating a previous disc lesion. In view of this I did not offer him any surgical management and when I last reviewed him in January 1995 things appeared to be in fact settling down. On review of his neurological status then - all his reflexes were intact and there was just a suggestion of some weakness in myotomal distribution of C5/6, that is to say elbow flexion of possibly a grade 4, rather than a 4/5. At that point our understanding was that he would be returning to see Dr. Liaw at the end of the month with a review of his work situation. I understood this to be largely supervisory and it seemed to me that he may be able to go back to work initially in a part-time capacity. However in terms of long terms prognosis - he is likely to have exacerbation's of his cervical pain and possibly brachalgia depending on the extent of his activities. Mr. Edwards came to consult with me again on the 16th February 1995. It is now apparent that both his injuries, that is to say in relation to his neck, the C5-Co disc injury, and in relation to the knee, his cruciate knee injury, continued posing problems in the workplace where he may occasionally be in a violent confrontation or a face to face situation with prisoner management and I have to say that I feel that he is not getting any younger and the likelihood of him being able to return to this kind of work situation is, in my opinion, unlikely, and probably in itself dangerous. I would therefore suggest, and I have indicated this to him, that he seek re-training in an alternative life- workstyle. I will request the ACC to look in to this on his behalf." During 1995 the appellant was assessed by the Rotorua Rehabilitation Clinic and it was recommended that he should return to work on a trial basis. A report on 2 November 1995 proposed a graduated work trial at the Pine Camp complex of the prison. On 6 November 1995 following a meeting between the appellant, the occupational therapist and Tongariro prison administrators, it was agreed that the appellant should undertake a work trial if Mr Stanley-Clarke approved its nature. 3 On 10 November 1995 the appellant advised the respondent that he was concerned as to the suitability of the work trial. However, on 10 November 1995 Dr Newburn, a Neuropychiatrist, advised the respondent that she considered that it was important for the appellant's rehabilitation that he should return to work. Through his solicitor, the appellant requested a postponement of the work trial pending a further meeting. On 21 November 1995 Mr Stanley-Clarke issued a further report in which he stated: "The complaint that Mr Joseph Edwards has is that of ongoing neck discomfort, and left shoulder and left sided arm pain or brachalgia which he states has remained relatively unchanged since my assessment of 16.2.95. As you are aware when he initially consulted me I made a presumptive diagnosis of a C5/Co cervical disc lesion. A CAT scan and myelogram showed no significant prolapse however and he was managed conservatively. Radiologically there was some narrowing of the C5/C6 disc indicating that he has had a previous disc problem at this level. On review of his cervical spine: He resists movement of the neck. His range of movement is probably to half normal range with some discomfort apparently experienced at the extremes but no brachalgia. On examination of his upper limbs: I can see no evidence of any motor wasting or any fasiculation which would indicate a chronic denervation problem or weakness. On examination of his strength in relation to his shoulders, elbows, wrists and hands I graded him at 5. Reflexes: All his reflexes were intact. Repeat xrays taken on day of examination showed a relatively normal cervical spine with marginal narrowing of the C5/C6 disc space with no encroachment on the intravertebral foramina posteriorly. There is some early evidence of neuro-central joint degeneration at this level however. In summary therefore the situation appears clinically not to have changed in any way since 16.2.95. This in itself is surprising as the nature of a cervical disc problem would be intermittent and if one was not stressing the neck to any significant degree it should largely settle down and be relatively asymptomatic. This does raise therefore the question of the ongoing voracity of his claimed symptomatology. In discussing the options with him he relates that he is unhappy about returning to work where he may be placed in a situation where he would have to restrain violent individuals and is totally lacking in self confidence in his ability to do so. He, in my opinion is certainly fit for work other than that of a heavy labouring type situation and avoiding any physical straining activities." 4 A subsequent report on 11 December 1995 from a physiotherapist stated that she considered that some of the symptoms were exaggerated. On 12 December 1995 the respondent advised the appellant that the commencement of the work trial was to take place on 18 December 1995. On 21 December 1995 the appellant's solicitor advised the respondent that while the appellant had been assured that there had been no incidents of violence at Pine Camp where it was proposed the appellant was to work, he listed five incidents of violence which had taken place at Pine Camp between 28 July 1995 and 18 November 1995. While the prison authorities maintained that because most of the inmates were non-violent, the appellant's concerns to avoid any violent confrontation were unnecessary. The respondent replied to that letter by stating that the work trial was to continue while further enquiries were made. On 3 January 1996 Mr Stanley-Clarke advised the appellant's solicitor: "DIAGNOSIS: Cervical Disc function and instability left knee. Mr Joseph Edwards would be fit for work of a light manual variety or administrative work and away from any situation of potential danger or conflict. An environment therefore within a prison as a Prison Warder would have to be very carefully judged both by Mr Edwards himself and his immediate superiors." A further report from Dr Newburn emphasised the need for a return to work and for completion of the proposed Pine Camp trial. The appellant undertook the work trial for only 5 days when he left and from 5 March 1996 the respondent ceased payment of weekly compensation. The appellant applied for a review of that decision. The appellant's principal concern as expressed to the review officer, was that he wished to avoid having to be involved in any type of physical confrontation with violent inmates. He considered that such a confrontation would jeopardise the condition of his neck for all time. He was not satisfied that even if he worked as a special assistant within the compound at Pine Camp in a more or less supervisory capacity, he would still feel the need to become involved if another officer was in a violent confrontation with a prisoner. After reviewing the evidence the review officer held "In my opinion the Corporation has gone to considerable efforts to facilitate and accommodate Mr Edwards' rehabilitation which is clearly in his own interests, and that all reasonable steps have been taken to ensure the tasks expected of him are appropriate and undertaken in as safe an environment as possible. While returning to work after such a break is obviously challenging I am persuaded that Mr Edwards' failure to persevere with his work trial after four days represents unreasonable failure to comply with his own rehabilitation." In his submissions Mr Lake reviewed the evidence including Mr Stanley-Clarke's advice that it was inherently dangerous for the appellant to be involved in a prison environment as such. He submitted that Mr Stanley-Clarke's advice was that the appellant needed work of a more sedentary nature which did not involve anything of a physical nature and the appellant's evidence was that this could not be avoided in the context of the prison scene unless he was merely employed in an administrative capacity. Mr Lee submitted that the question was whether the appellant's failure to undertake the work trial was unreasonable. He submitted that the onus is on the respondent to prove on the balance of probabilities that the appellant's conduct was unreasonable. In support of that submission he submitted that the question was whether the proposed work trial was appropriate for the appellant and that this could be seen to be so because of the reports of Dr Newburn and the recommendations of the occupational therapist. He said that both parties had recommended rehabilitation on a gradual basis and such rehabilitation was to be supervised by Dr Newburn. Mr Lee submitted that while Mr Stanley-Clarke qualified the appellant's fitness to work he did not suggest that work within the prison could not be considered. Mr Lee submitted that the evidence disclosed that the respondent had gone to considerable pains to provide suitable rehabilitation for this appellant within his own optimal functional capacity. The issue falls to be decided under s.73 of the Accident Rehabilitation and Compensation Insurance Act 1992 which, insofar as it applies to this appellant, states: (2) The Corporation shall ... upon the unreasonable refusal or failure of any person to: a) Comply with any requirement made under any provision of this Act relating to any claim; or ... (c) Agree to, or comply with, an individual rehabilitation programme - decline to make any payment under this Act." As both counsel have stated, the issue is whether the action of the appellant in failing to complete the work trial was reasonable in the circumstances. While counsel have referred to other similar cases, each case of this nature has to be decided on its own particular facts. I am satisfied that the respondent has accepted its responsibility to provide appropriate rehabilitation activity for this appellant. In the course of that action the advice given to him has been that a return to work could be advantageous. In particular, where possible, a return to the same type of work as that in which the appellant had been engaged prior to his accident is the most appropriate. However, this has to be tempered by the 6 medical advice which has come principally and specifically from Mr Stanley- Clarke. He is the specialist in the field so far as this appellant is concerned and he has mentioned the need to avoid strain or heavy or violent activity. The appellant is prepared to work and to attempt a work trial but only if he can avoid physical confrontation with prisoners. Mr Stanley-Clarke accepts that the appellant is capable of working, but is not capable of work of heavy labouring type or one which involves physical strain. This was exemplified by his report of 3 January 1996 in which he considered that work within the prison "would have to be very carefully judged both by Mr Edwards himself and his immediate superiors". This belief was brought about by virtue of the fact that it had been put to the respondent and its advisers that work at Pine Camp would only involve non-violent prisoners. It can be seen from Mr Lake's letter of 21 December 1995 that in spite of assurances to the contrary five violent incidents had taken place between 28 July 1995 and 18 November 1995 at Pine Camp. This statement has not in any way been denied by the prison authorities or by the respondent. There has been no suggestion that the appellant has not been prepared to submit himself for assessment and consideration for a work trial. He has been prepared to attend wherever necessary for such assessments and this has been acknowledged in meetings in which the proposals have been discussed. However, at all times he has raised the question of his concern regarding his ability to deal with heavy physical work or physical violence. In these circumstances and in particular having regard to the advice of Mr Stanley- Clarke, I consider that it was reasonable for the appellant to discontinue the work trial at Pine Camp. It is a pity that the prison authorities are not able to provide him with a more administrative type job which would avoid him having to have any confrontation with the prisoners. If such work is not available then it may be that the appellant will have to look for other employment, but I do not consider that in the circumstances he should be denied weekly compensation in the meantime. The appeal is therefore allowed and the appellant's weekly compensation will be reinstated. There will be costs of $800. DATED at WELLINGTON this 12 th day of September 1996 Qunnadub A W Middleton District Court Judge de155-96.doc(rd)