Laverty v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 45 /2000 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JUDITH ANNE LAVERTY of Dunedin Appellant (Appeal No. Al 120/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at CHRISTCHURCH on the 1st day of March 2000 APPEARANCES/COUNSEL I J D Hall for appellant I G Hunt for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the respondent's decision of 7 December 1998 declining further entitlements pursuant to section 73(1) of the Act as confirmed by the Review Officer was correct. The background to this appeal is that the appellant lodged a notification of accident and a claim form with the respondent in October 1982 claiming to have suffered a whiplash injury on 23 December 1978 when a dinghy in which she was sailing on Otago Harbour hit a sandbank. The file discloses that in August 1983 the appellant was suffering backache but an investigation of her then medical records indicated that she had had back problems and abdomen problems from a degenerative disease of the lumbar spine as far back 2 as 1973. Her problem in August 1983 was because of headaches and convulsion. Her medical records indicated that she has suffered various problems with low back pain and lumbar backache and pains in her right leg. In November 1974 the appellant was referred to Mr C B Fitzpatrick, an Orthopaedic Surgeon, because of right side sciatica and complaints of pain in her left loin, the origin of which Mr Fitzpatrick was unable to diagnose. The appellant continued to complain of lumbar pain but then in December 1981 was injured in a motor vehicle accident and she was then referred to the casualty department, Dunedin Public Hospital. As a result of the sailing incident in 1978, her General Practitioner noted that she consulted him because of pain in her neck and particularly in the right shoulder and down the right arm. There appeared to have been further accident incidents in the years following. The principal issue for the Court is that the appellant was accepted for cover in respect of the injury to her neck sustained as a result of the sailing incident in 1978 and since 1983 has been receiving entitlements under that claim. The medical records indicate that the appellant underwent surgery by Mr B F Hodgson, an Orthopaedic Surgeon, to her lumbar spine with an L4 to S1 decompression on 26 May 1995. When he examined her on 17 October 1997, Mr Hodgson concluded that she had made "a good recovery" from that operation but still had some right side buttock and hip pain. On 26 November 1998, following a referral from the appellant's General Practitioner, Dr J Gardner, Mr Hodgson prepared a report which he delivered to the respondent. There is no doubt that this report had not been requested by the respondent but the appellant's ACC appeal number, for which Mr Hodgson had previously prepared reports, is included in the report- and he submitted the report in the usual form of a report to the respondent. In that report Mr Hodgson stated "I am unable to determine any link between her symptoms and her original injury." The original injury referred to by Mr Hodgson was the whiplash injury sustained in the sailing accident in 1978. When it received that report the respondent wrote to the appellant on 7 December 1998 advising her that as a result of that report it was satisfied that there was no link between her ongoing symptoms and her original injury so that further entitlements under the Act would cease as from 3 January 1998. The appellant applied for a review of that decision. Mr Hodgson also reported to Dr Gardner on 11 December 1998 his understanding that his consultation with the appellant on 26 November 1998 "was for symptoms unrelated to her lumbar spine problem." In that letter he stated "her present symptoms I do not believe relate to her previous low back problem and as such I do not believe are ACC related." On 18 January 1999 Mr Hodgson again confirmed to the respondent that in relation to the appellant: "Her current symptoms I do not believe relate to her original injury and if her current symptoms are preventing her from working then I do not believe this is an accident related problem." 3 Before the review hearing took place, Dr Gardner provided a letter dated 8 July 1999 detailing a number of problems suffered by the appellant. in that letter Dr Gardner set out details of the appellant's longstanding problems and then stated: "You will see just from this brief outline of the musculoskeletal problems that Judith has, that when injured she seems to take a longer time than normal to recover and produce complex symptomatology. This also manifests in other areas ie. she has multiple allergies and if she gets a sinus infection it is very difficult to deal with the infective organism." Dr Gardener stated: "I am inclined to agree with Mr Hodgson about this case that Judith will always have some symptoms attributed to her back injury and subsequent surgery, however I do not think that all her symptoms are attributable to this." The Review Officer noted Mr Hall's submissions that the respondent should have made an assessment based on the appellant's "whole person" rather than limiting it to the neck injury in 1978. The Review Officer concluded that she must accept Mr Hodgson's opinion that the current difficulties suffered by the appellant were not related to her original claim and declined the application for review. It is against that decision which the appellant now appeals. Mr Hall submitted: 1. That it was inappropriate for Mr Hodgson to gratuitously provide the respondent with his report of 26 November 1998 when the referral had been from Dr Gardner without any input from the respondent. 2. That it was clear from the appellant's evidence at the review hearing that she had not been warned or told by Mr Hodgson that he proposed sending a copy of the report to the respondent. 3 . That the respondent and the Review Officer failed to give adequate consideration to the provisions of section 73(1) and sections 37A and 37B of the Act. 4. That because of the procedure by which the report became available to the respondent, serious doubt should be cast on its validity. Mr Hunt submitted: 1. That the principal issue was whether or not the appellant continued to be affected by the results of the accident in 1978 which was the accident for which she had been granted cover. 4 2. That the test is emphasised by the provisions of sections 37A and 37B, the key words being "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. ..." Mr Hunt emphasised the words "by reason of his or her personal injury." 3. That sections 37A and 37B and section 73 require that a link be shown between the original personal injury and the entitlements to which the appellant might receive as a result of that. The relevant sections are section 73(1), sections 37A and 37B. In so far as they apply to these sections, they respectively state: " 73. Suspension, cancellation, or refusal of compensation and rehabilitation---(1) The Corporation shall, if not satisfied on the basis of the information in its possession that a person is entitled to continue to receive any treatment, service, rehabilitation, related transport, compensation, grant, or allowance under this Act, suspend or cancel that payment for treatment, service, or related transport, or the payment of compensation, grant, allowance, or provision of rehabilitation. (1A) Where the suspension, cancellation, or refusal under this section is in respect of a matter that is the subject of [an agreement or contract or arrangement under section 29A] of this Act, the Corporation shall notify the appropriate [funder] of the suspension, cancellation, or refusal within 14 days or such other period as is specified in the agreement." " 37A. Determination of incapacity in relation to earners generally--- (1) For the purposes of this Part of this Act, the Corporation shall determine the incapacity of a person (other than a person to whom section 37B of this Act applies) in accordance with this section. (2) 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 employment in which the person was engaged when the personal injury occurred. (3) The Corporation may make a determination under this section at any time and from time to time, and, in so doing, the Corporation may obtain such professional, technical, specialised, or other advice from such persons as it considers appropriate." " 37B. Determination of incapacity if person has ceased to be an employee or in cases of loss of potential earning capacity---(1) For the purposes of sections 44, 45, and 46 of this Act, the Corporation shall determine a person's incapacity in accordance with this section. (2) The object of a determination 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 work for which the person is suited by reason of experience, education, or training, or any combination of those things. 5 (3) The Corporation may make a determination under this section at any time and from time to time, and, in so doing, the Corporation may obtain such professional, technical, specialised, or other advice from such persons as it considers appropriate." I note Mr Hall's concern that Mr Hodgson had not been requested by the respondent to provide a report as to whether the appellant's ongoing symptoms are the result of her sailing accident in 1978. However, whether or not it was ethical for him to do so is not a matter on which this Court has jurisdiction and if there are problems in relation to the procedure which he adopted then that and the question of medical ethics which is something Mr Hall will have to consider and take whatever action he deems appropriate. Section 73 merely empowers the respondent "if not satisfied on the basis of the information in its possession that a person is entitled to continue to receive any treatment, service, rehabilitation, related transport, compensation, grant, or allowance under this Act, suspend or cancel that payment". In this case Mr Hodgson had been dealing with both the appellant and the respondent over a considerable period and was aware of the respondent's involvement in her case. That is evident from the nature of the report which he submitted to the respondent. There is no evidence on the file as to the instructions given by Dr Gardener when she referred the appellant to Mr Hodgson for his examination. However, when the respondent received the report, it constituted information upon which the respondent was entitled to rely and which established that the appellant did not continue to suffer any symptoms as a result of the accident for which she then had cover. I agree with Mr Hunt's submission that by virtue of sections 37A and 37B the question of incapacity is linked to the appellant's "personal injury" (emphasis mine). That personal injury must be the injury for which she has been granted cover. I do not consider that the section contemplates that it involves a broad spectrum of multiple problems apparently suffered by the appellant. I do not accept Mr Hall's submission that if there was to be an assessment of the appellant's condition it should be on a "whole person" basis. The appellant was granted cover only in respect of the injury sustained in the boating accident in 1978 and Mr Hodgson's report clearly states that any symptoms she now suffers are in no way related to that accident. The appeal must therefore be dismissed. DATED at WELLINGTON this 215+ day of March 2000 bueluadliain A W Middleton District Court Judge ai120-99.doc (nr)