Shearman v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 123 /95. UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act 69|95 1591 BETWEEN KAREN ANNE LORRAINE SHEARMAN of Palmerston North Appellant (Appeal No. DCA 43/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 18th day of September 1995 APPEARANCES A R Rowlett advocate for appellant P Zumbach for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether there has been a valid election under section 147 of the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant lodged a claim with the respondent on 9 May 1988 that she suffered personal injury by accident in the form of RSI in the right wrist. At that time she had been working as a data entry operator for State Insurance and had been incapacitated for one week. The file appears to have been closed not long after it was opened and no further action was taken until the appellant presented a C15 medical certificate in July 1992 which requested that a permanent disability assessment take place. The file discloses that on 13 July 1992 the appellant telephoned the respondent to obtain details of progress on her PD claim and subsequently it was found that the original file had been closed without a claim having been accepted or declined. The respondent's District Medical Advisor noted in a file memorandum: 2 "There is no evidence on file to support PD due to RSI. Dr Murdoch's letter does not identify any loss or impairment of bodily function at present. Advise no s.78 entitlement..." In her letter of 6 August 1992 Dr Murdoch had stated: "This lady is at present well and she is not doing any work which produces her RSI. She finds that if she does undertake any activities along those lines that it rapidly comes back. She has not been working over the last few years as she has been a mother with two young children but feels that she would be unable to go back to computer work when she does wish to rejoin the work force and as she is young she will be contemplating doing so. I have not referred her to a Specialist though this will no doubt be necessary when she does return to work. I feel that she is going to continue having permanent problems and therefore warrants your assessment for permanent disability." On 26 January 1993 the respondent advised the appellant that her claim for disability was declined. It was not until 27 October 1994 that the appellant's present advocate became involved and a late application for review was lodged on 21 November 1994. On 28 November 1994 the respondent declined the late application and also made a decision that there was no entitlement under section 147 of the 1992 Act because no election for a lump sum payment had been made. On 30 November 1994 the appellant's then General Practitioner Dr S Hartshorn submitted a report in which she states: "I saw Karen today and she requests that I provide you with some past and present information about her repetitive strain injury. I am her new GP but from the notes and from discussion with her today it seems that it first became a problem when she was working as a computer operator for State Insurance seven years ago. It is the right wrist which is affective by the repetitive strain. Initially she worked with the pain for twelve months but had to give up her job because of the injury. She has been on the unemployment benefit since and still has persistent pain especially when knitting, typing or any movement of the right wrist or arm which involves repetition. She has tried various treatment modalities including a brace and physiotherapy which has been of no benefit and she has tried anti-inflammatory medication which have also not altered the condition. I note that Dr Murdoch wrote on 6 August 1992 requesting that she be assessed for permanent disability but I do not know what the result of this was. At this stage she has not had a specialist referral but I am happy to organise this should you feel it is necessary. 3 On examination today there are no obvious abnormalities at present. She has full range of movement of the right wrist with some mild pain on deep palpation of the joint. This is in keeping with the diagnosis of RSI or Occupational Overuse Syndrome, whereby the pain comes on with repetitive movements. I hope this is of help to you." The review hearing was held on 25 January 1995 and the review officer upheld the respondent's decision as to the late application for review and the issue of a valid election under section 147. The appellant has appealed against that decision. After the appellant had appealed against the decision of the review officer, her advocate arranged for her to be examined by R D Wrigley, a Consultant Rheumatologist who reported on 4 March 1995 "I examined her today after reading the reports from Dr Sarah Hartshorn and Dr Murdoch and Dr Broad's comments. I consider that she does have a valid claim for overuse syndrome arising out of her occupation. OCCUPATIONAL HISTORY She took typing at school but did not do school certificate, leaving in the 5th form. She did various jobs, working as a Vet's assistant and in a dairy but 1982 she started doing data entry work for the State Insurance. This involved numbers as well as alpha numeric work with both hands. She first developed her symptoms about 1987. She persisted with that for 12 months and then gave up work, apparently being on ACC for the first two weeks only. She subsequently changed to Unemployment Benefit, not being aware that she was eligible for ACC payments. She has not been able to work since. She has children of 7 years, 5 years and 5 months and has been separated for some time. SYMPTOMS The pain developed in the right wrist and has recurred persistently ever since. Any sustained activity will bring it on and it then may last for several days, or a week. When that happens the strength of her hand is reduced to the point where she has difficulty with almost all tasks and the pain may persist disturbing rest and sleep. This causes considerable distress. She has difficulty in handling the children and with almost all domestic tasks such as preparing vegetables, lifting the children, driving, vacuuming, washing, turning taps and even flushing the toilet, cleaning windows and anything of a repetitive nature. When she is at her worst she has difficulty wiping herself after using the toilet and has to use the other hand. She can only write half a page without having to stop. She has had to discontinue tennis and playing volley ball. On the whole she manages to cope by avoiding the situations which bring on the pain and make it last. She is at present in a good phase. 4 EXAMINATION She has no tender points. Doing a four finger serial opposition test, it is noticeable that she has more difficulty doing this on the right than on the left and as is usual with people with focal dystonia from this complaint she turns her head and screws up her mouth in trying to do better whereas this doesn't happen with her non-dominant left hand. In particular she has difficulty in getting the thumb onto the small finger, though there is not actually any reduction in the strength of that movement. Her grip strength reached the maximum of 30 on the left and 24 on the right. This should be 2-3Kgs more on the right dominant hand. On that basis I calculate a strength index of 20. There is minor evidence of carpal tunnel syndrome in that she does not always feel cotton wool on the 2nd, 3rd and 4th fingers though she does feel pin prick. She is also less consistent in recognising two-point stimulation over that aren. DIAGNOSIS She gives a typical history of occupational overuse syndrome, mainly affecting the right wrist with minimal evidence of carpal tunnel pressure and focal dystonia. SECTION 79 (1) Grip strength. The strength index of 20 on the right allows 10% impairment of upper extremity. (2) For the focal dystonia and minor carpal tunnel pressure combined I would add 5%. Total whole body impairment 12%. SECTION 79 This complaint has resulted in a major upset in her lifestyle and inability to return to the work force. I would recommend a generous award on this account. REHABILITATION Apart from physiotherapy, that did not help, she has not had any positive assistance with the management of this complaint. I will recommend to Dr Hartshorn that she be referred to Glenys Denyer for continued advice. I have given her my book on self management of this complaint. Disability at present is minimal since she is at her best but at times she is severely disabled and has difficulty coping with domestic needs. The rehabilitation 5 objective should be towards coping in the home better. The question of re- employment does not arise in the foreseeable future." The review officer rejected the claim that the appellant had an entitlement under s.147 of the Accident Rehabilitation and Compensation Insurance Act 1992 because of the failure to make a written election by 1 April 1993 and in doing so she followed a number of decisions of this Court which followed the decision in Webster v ARCIC (22/94). Mr Rowlett submitted that the decision of the respondent of 26 June 1992 merely noted that the appellant's "claim for permanent disability" was "declined". He submitted that the decision was not clear as no reasons were given in support of it. Mr Rowlett further submitted that the appellant would become entitled to lump sum awards if the late application for review was granted (that, however, is the subject of a separate appeal before the Accident Compensation Appeal Authority). Ms Zumbach submitted that Dr Wigley's report now confirms that as at 4 March 1995 the appellant has a permanent loss of function which only entitles her to claim an independence allowance under the 1992 Act. She submitted that it does not alter the original decision of 26 January 1993 because it is a diagnosis of the level of the appellant's permanent impairment on 4 March 1995. She submitted that as the lump sum provisions in sections 78 and 79 of the 1982 Act were repealed on 1 July 1992 the appellant could only rely on the transitional provisions and in particular on section 147. She submitted that in relation to that issue it is first necessary to establish that the appellant had an entitlement to compensation under sections 78 and 79 and there was no medical evidence to support this contention at the time the respondent made its primary decision, nor could Dr Wigley's report be deemed to be retrospective. I accept Ms Zumbach's submissions that the medical evidence available at the time the respondent made its primary decision did not support a claim for entitlement to compensation under section 78 or 78. This can clearly be seen from the reports of Drs Murdoch and Hartshorn. The appellant had lodged a claim prior to 1 October 1992 which the respondent has subsequently found to be acceptable in terms of the 1992 Act. If the appellant is to have an entitlement to a lump sum award her application must come within the provisions of section 147 which state: "147. Compensation for non-economic loss---(1) Where any person had an entitlement to compensation under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982 but has not received that compensation and makes written application for that compensation before the Ist day of April 1993, that person shall be entitled to payment under those sections if payment is made on or before the 30th day of June 1995 or after that date if pursuant to a decision given on review or appeal under Part IX of the Accident Compensation Act 1982 as continued in force by section 152 of this Act. (2) Where any person has suffered personal injury by accident to which the Accident Compensation Act 1972 or the Accident Compensation Act 1982 applies, and--- 6 (a) That person has an entitlement to compensation under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982 in respect of that personal injury, but has not received any payment under any of those sections in respect of that personal injury; and (b) That person would have an entitlement to an independence allowance under this Act if the personal injury had been suffered on the Ist day of July 1992--- that person shall be entitled to elect in writing, not later than the 31st day of March 1993, to receive either his or her entitlement under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982, or an independence allowance under and subject to the conditions of this Act, but not both. ... 3) Subject to section 148 of this Act, if--- (a) No payment has been made in respect of personal injury by accident under section 199 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982; and (b) No payment is made under subsection(1) of this section; and (c) No election is made under subsection (2) of this section--- the person shall be deemed to have elected to receive an independence allowance under and subject to the conditions of section 54 of this Act as if the personal injury by accident was personal injury that had been suffered on the Ist day of July 1992. This Court held in Webster v ARCIC (22/94) that there can be no entitlement to lump sum awards unless the necessary election is made by 31 March 1993. The Act provides no discretion which would permit a lump sum payment to be made under the provisions of the 1982 Act unless that election had been made by the due date. There have been a number of decisions of the Court along similar lines and the same principle must therefore apply to this appeal. The first information available to the respondent that the appellant has suffered a permanent disability is Dr Wigley's report of 4 March 1995 following his examination of the appellant on that day. I agree with Ms Zumbach's submission that the appellant did not therefore meet the first requirement for consideration under section 147. As the appellant has not made the necessary election under section 147 (2) by the 31 March 1993 she is deemed to have elected to receive an independence allowance in terms of section 54 of the 1992 Act. The appeal is dismissed DATED at WELLINGTON this 25th day of October 1995 A W Middleton District Court Judge dca43-95.doc (nr)