Curline v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 200 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JULIE ANN CURLINE of Christchurch Appellant (Appeal No. DCA 171/99) 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 24th day of June 1999 APPEARANCE/COUNSEL I J D Hall for appellant A D Barnett for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the respondent's decision of 7 January 1999 that the appellant had a capacity for work was correct. The appellant suffered a severe contusion to her shoulder in an accident in November 1987 for which the respondent granted cover. She was at that time employed as a Packer with Lane Walker Rudkin and remained in receipt of weekly earnings until the respondent's decision of 7 January 1999. During that period the 2 appellant had been able to obtain part time employment as a Shop Assistant in a children's wear shop where a sympathetic employer had made it possible for her to keep up with the work. During the time she has been in part time employment her weekly compensation has been abated. In June 1996 the respondent under took a review of the status of her capacity for work pursuant to section 37A. The evaluation made at that time prompted the respondent to cease the appellant's entitlement to weekly compensation because it considered that she no longer suffered an incapacity which precluded her being able to engage in the employment in which she had been engaged when the injury occurred (section 37A). The appellant applied for a review of that decision. The Review Officer concluded that the respondent's decision was incorrect and her entitlement to weekly compensation was thereafter reinstated. In April 1998 the respondent required the appellant to undertake a work capacity assessment pursuant to the provisions of sections 50 and 51 of the Act. That assessment was undertaken by Mark Palmer and Associates whose report of 24 April 1998 noted that the job options identified as suitable for the appellant were "quality controller/packer and retail assistant (currently employed part time)." After that report was received the respondent referred the appellant to Mr J Talbot, an Orthopaedic Surgeon for him to carry a work capacity assessment. In his report of 20 July 1998 Mr Talbot's assessment of the appellant's work capacity was: 'My examination fails to identify an objectively verifiable medical condition which could result in further injury if the claimant increased her hours of work in her job as a Retail Assistant in a clothing shop. I have impressed this upon her and we have discussed the "hurt versus harm approach to injury." Two job options have been identified as suitable in the Occupational Assessor report, namely Quality Controller - Packer, and Retail Assistant. Mrs Curline is adamant that she could undertake the first job because that is what she was doing previously at Lane Walker Rudkin and she knows that her shoulder and neck would not stand up to it. However, she is currently coping quite well with the Retail Assistant job and feels that she will be able to build up her hours ultimately to 30 hours a week. I consider there is no medical reason why she could not build up her hours to 30 hours or more a week. I have commended her on her efforts. I have told her that I will recommend to you that she gradually increases her hours over a finite period, I would suggest three months, and that at the end of this three months, I would expect her to be undertaking 30 hours a week as a Retail Assistant and be independent of ACC As requested in the Guidelines, I am recording that the recommendations above are based on my own findings and the report of the claimant." On 7 January 1999, in answer to a query from the appellant's counsel, the respondent notified him that as a result of the work capacity assessment made pursuant to 3 sections 50 and 51 of the Act, it was determined that the appellant had a "capacity for work" (section 51) and that her entitlement to weekly compensation would cease from 30 April 1999. The appellant applied for a review of that decision. The Review Officer upheld the respondent's decision and it is against that decision which the appellant now appeals. Mr Hall submitted: 1. That in reaching her decision the Review Officer had placed a "gloss" on the medical evidence in favour of the respondent. 2. That contrary to the principles which apply to review hearing the Review Officer had relied on a file memorandum by Dr N Smidt which had not been disclosed to the appellant or her counsel prior to the review hearing which created a prejudice which should be resolved in favour of the appellant. 3. That the enquiries made by Dr Smidt of Mr Talbot resulted in an enlargement of Mr Talbot's findings whereas the Review Officer should have relied on Mr Talbot's assessment as it stood. 4. That the Review Officer was wrong in holding that a recommendation by Mr Talbot that the appellant could undertake work for 30 hours or more per week meant that she should be "deemed to have a capacity for work" as those words were not within the context of the Act or the Gazette notice. That the appellant relied on the words of section 51(7), which it was submitted, referred back to section 37 and the words "is unable to engage in employment in which the person was engaged in before the personal injury occurred." That there was compelling evidence that the appellant could not work as a packer at Lane Walker Rudkin. Mr Barnett submitted: 1. That the earlier decision in November 1997 was an assessment made under section 37A while the procedure adopted in respect of the issue now before the Court was undertaken pursuant to sections 50 and 51. 2. That by virtue of section 50(2) the respondent was authorised to establish a procedure for a work capacity test by publication in the Gazette. That procedure was duly gazetted on 1 November 1997. 3. That by reference to the Gazette notice the test of "capacity for work" is different from the test of "incapacity" in section 37A(2) because the requirement in section 37A(2) for proof that the appellant is unable to undertake the employment in which she was engaged at the time of the accident has been removed 4. That on the basis of the assessment made by Mark Palmer and Mr Talbot it was identified that the appellant had a "capacity for work" as a Shop Assistant at the time of Mr Talbot's examination but with the leeway that she should be allowed 4 a further three months to enable her to increase the hours of work to 30 hours per week. The relevant law is contained in section 51 which, in so far as it applies to this appeal, states: '51. Assessment of capacity for work---(1) For the purposes of determining whether or not a person who is receiving compensation for loss of earnings or for loss of potential earning capacity, or who may have any entitlement to compensation for loss of potential earning capacity, has a capacity for work, the Corporation shall determine the person's capacity for work in accordance with this section. (2) For the purposes of this Act, the term 'capacity for work', in relation to any person, means the person's capacity to engage in work for which the person is suited by reason of experience, education, or training, or any combination of those things, and that capacity shall be determined having regard to the consequences of the person's personal injury. 3) Every assessment under this section shall be carried out - - - -- - - (a) In accordance with the procedure for the time being determined by the Corporation under section 50 of this Act; and (b) In accordance with the principles of natural justice. . . . (7) If a person is assessed under this section as having a capacity for work, then, -- (a) For the purposes of section 37A of this Act, that assessment shall be regarded as a determination that the person is able to engage in employment in which the person was engaged when the personal injury occurred: (b) For the purposes of section 37B of this Act, that assessment shall be regarded as a determination that the person is able to engage in work for which the person is suited by reason of experience, education, or training, or any combination of those things." Section 50(2) requires the respondent to publish in the Gazette a draft of the proposed procedure required for making assessments of "capacity for work". The Court has been provided with a copy of the Gazette notice which came into force on 1 November 1997 which states that the first step in the assessment is to have the appellant's skills assessed by an Occupational Assessor who is to identify suitable jobs within the appellant's experience, education and training. The second step in the procedure is the requirement for examination by a Medical Assessor who is to 5 determine the appellant's ability to perform any of the jobs identified in the occupational assessment. The notice then reads: "If the medical assessor recommends to ACC that the client is able to work in any of the jobs for 30 or more hours per week, then that person will be deemed to have a capacity to work, and weekly compensation will cease after 3 months." (my emphasis) The assessment by Mr Palmer was that the appellant by virtue of her education, training and experience would be able to undertake employment as a quality controller / examiner / packer or as a retail assistant. Thereafter Mr Talbot made his medical assessment from which I have already quoted the relevant passage. Mr Talbot's report was dated 20 July 1998 and the respondent allowed until 20 January 1999 to allow her to comply with the tolerance suggested by Mr Talbot. The decision then gave the requisite notice required by the rules set out in the Gazette notice that weekly compensation would cease on 30 April 1999. While Mr Hall has taken issue with the failure of the respondent to disclose Dr Smidt's memorandum to either the appellant or him prior to the review hearing, I do not consider that it is particularly material to the decision in this appeal. Further, -. .. .- I do not consider that the Review Officer needed Dr Smidt's explanation in order to reach the decision she did although she referred to it. Mr Hall himself conceded that had he been aware of that memorandum prior to the review hearing he is not certain how it would have affected his approach at the review hearing and I consider that the matter can be left there. I consider that read by itself Mr Talbot's report clearly demonstrates that an increase in hours would not result in further injury and that there was no medical reason why at that time the appellant could not build up her hours of 30 hours or more per week (my emphasis). However, he generously allowed that she should be given a period of three months in which to reach that stage, a stage of which he considered she was well within her then capacity. Mr Talbot's report was written on 20 July 1998, the decision of the respondent was issued on 20 January 1999 with the notification that weekly compensation would not cease until 30 April 1999. I consider that a generous extension of the leeway suggested by Mr Talbot. It is quite clear from the legislation that the test of the "capacity for work" pursuant to section 51(2) is quite a different concept from the concept of "incapacity" under section 37A(2). The concept of "capacity for work" does not envisage a return to the work in which the person had been engaged at the time of the injury but merely a capacity to do 30 hours or more per week in a position for which the person has been assessed as having the necessary capacity after taking into account that person's education, training and experience. I consider that in the case of this appellant, the respondent undertook the correct procedures in establishing that the appellant does have a "capacity for work" as required by the present legislation. 6 The appeal is dismissed. DATED at WELLINGTON this 20th day of July 1999 A W Middleton District Court Judge dca171-99.doc (nr)