Stevenson v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 123/ 97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN KELLIE HEATHER STEVENSON of Wanganui Appellant (Appeal No. DCA 324/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 14th day of May 1997 APPEARANCES A R V Rowlett, advocate for appellant A D Barnett, counsel for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant has satisfied the test of incapacity in section 37 of the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant suffered a back injury on 4 October 1985 and a subsequent injury to her neck in 1991. As a result of the injuries the appellant received lump sum awards 2 on the basis of a total of 20% permanent disability. At the time of her original accident the appellant worked in partnership with her husband in a milk delivery business but could not continue with this work after the accident. She subsequently worked as a GST Auditor for the Inland Revenue Department for approximately eight years until she took maternity leave on 6 December 1993. The evidence indicates that prior to taking maternity leave the appellant arranged with Inland Revenue Department that she would return to her employment after a year but on a part-time basis only. In July 1994 the appellant enquired from her Case Manager whether she would qualify for weekly compensation if she returned to work part-time following the birth of her child. She was apparently advised that such an application would be given consideration. The notes taken by the Case Manager at that time indicated that the appellant was having back problems which considerably hampered her ability to deal with her child. It appears that it was suggested that she should consult her doctor with a view to a referral to the Pain Clinic and that if she was certified as being unable to return to work consideration would be given to weekly compensation. The appellant did not return to work until 1 December 1994 and then only on a part-time basis and has continued on that basis. Her medical condition is outlined in a report from Mr I S Mcpherson which is dated 30 November 1995 and states: "This 44 year old lady picked up a heavy tin full of coins on the 4.10.85 as she twisted with the weight she experienced a severe pain in her back. At the time she was assisting her husband in running a milk delivery business and for a week she was virtually unable to move because of her back pains. She attended her general practitioner and thereafter a chiropractor. Improvement in her back pain was extremely slow and she started to note an ache in her right leg sometimes extending down as far as her right ankle. She noted no paresthesia or numbness. Because of her back problem she was unable to continue helping her husband and the business was sold. In 1986 the pain had settled a little and started working in the Home of Compassion as a nursing assistant. This however aggravated her back pain once more and she was only able to maintain this job for a short period of time. Thereafter she obtained a job at the Inland Revenue as a GST Auditor and she has continued in this occupation to the present day. She does however experience continuing problems with her back which troubles her if she sits for long periods. During 1994 she was absent from work on maternity leave but has returned to the Inland Revenue Department this year working on a part time basis. She works on Mondays and Tuesdays, has Wednesdays and Thursdays off and then does a further days work on Friday. Over the last week she did some extra work working a full week and this has aggravated her pain once more. Her back pain is aggravated by any physical activity. She finds vacuuming extremely difficult and also making beds is difficult. She is able to do no 3 gardening. She gets home help assistance and also child care assistance. She is only able to drive a car for around 30 minutes. Her general health is otherwise good and I could elicit on other relevant past history. EXAMINATION: On examination she moved easily and without obvious discomfort. Forward flexion of her lumbar spine was 80% of normal. Extension was normal and lateral flexion in both directions was normal. Straight leg raising was 80 degrees on both sides and I could define no weakness or sensory deficit in the lower limbs. Reflexes were all present and physiological. She had some minor tenderness on palpation in the subumbilical region but no other tenderness or masses in the abdomen. She was also tender over the posterior spinous processes at L4 to S1. An x-ray of her lumbar spine shows a grade 1 spondylolisthesis at the L5/S1 level. An MRI examination of her spine has been performed and this shows a degenerative disc at the L5/S1 level. OPINION: This lady's current problems are due to a symptomatic spondylolisthesis at the L5/S1 level. It is likely that the problem was present prior to her injury in 1985 but the injury rendered the problem symptomatic and since the injury this has been a persisting problem. It would appear that her current problems are entirely related to the accident and are the sole reason for Mrs Stevenson's inability to work on a full time basis." On her return to work in December 1994 the appellant worked for only three days per week. In October 1995 the appellant applied for weekly compensation backdated to 1 December 1994, the date of her return to work. The respondent was advised by Inland Revenue Department that the appellant had intended to return to work in part-time capacity following her entitlement to parental leave and this was accepted by the appellant as her stated intention. On 17 January 1996 the respondent notified the appellant that her application for weekly compensation was declined because her lost earnings were not by reason of her incapacity. The appellant applied for a review of that decision. The Review Officer found that there was no medical evidence which confirmed that the appellant's incapacity for work was due to an injury which existed prior to 6 December 1993. The Review Officer was not satisfied as at that date. She met the test of incapacity. It is against that decision which the appellant now appeals. 4 The appellant was granted leave to give evidence at the appeal hearing and she confirmed that she had worked with Inland Revenue Department from January 1986 until she took maternity leave on 6 December 1993. She said that when she started she was still suffering a great deal of pain from the back injury but managed to carry out her work although with difficulty. During this period she did have three weeks off work during which she received earnings related compensation and on her return to work the respondent provided a special chair. She said that when she became. pregnant she had no additional problems but they increased during the course of the pregnancy. She said that in spite of having three previous children she found the problems with this pregnancy were much more difficult because of her back problems. She explained that she continued working until 6 December 1993 because she was the principal earner in the family and her contribution to the family income was essential. She had anticipated working up until Christmas but had to leave early because the midwife anticipated the birth to be due about 15 December but in fact it occurred on 14 January 1994. The appellant said that she had intended to return to work when the baby was three months old but because of the problems she was experiencing, had anticipated that she could not work full-time. The appellant said that as the months went by she realised that she would not be able to return to full- time work and she became very depressed with the result that she rang her Case Manager who arranged some assistance with child care and home help. The appellant said that at no time did the Case Manager suggest that she obtain a medical certificate. The appellant said that when she returned to work the arrangement was that she would work 20 hours per week on prearranged days but that was subsequently changed to different times because of the problems she experienced with her back. However, the number of hours worked each week remained at 20. In answer to Mr Barnett's question, the appellant confirmed that in spite of the difficulty with her back she had managed to work and cope with it. She conceded that had it not been for the pregnancy she anticipated that she would have continued to work full-time. Mr Rowlett submitted: 1. That the appellant had been severely prejudiced by the nature of advice she received from her Case Manager. 2. That the medical and other evidence indicates incapacity prior to the appellant's commencing maternity leave. 3 . That there has been continued medical certification which has qualified the appellant for home help entitlement. 4. That Mr McPherson's report confirms continued disability. 5 . That the Review Officer based her decision on the lack of medical certification of incapacity which is unfair to the appellant who was never asked to provide medical certificates. 5 6. That all the evidence indicates an inability to work full-time due to the appellant's injuries. 7. That the appropriate date for the commencement of incapacity was sometime during the pregnancy. 8. That given the unusual circumstances, the appellant should be regarded as having met the test of incapacity from the date she ceased work to commence maternity leave. Mr Barnett submitted: 1. That an assessment of the appellant's incapacity as at December 1994 would not assist the appellant in obtaining entitlement to weekly compensation because if an incapacity was established at that date then she had no earnings in the previous 12 months. Accordingly, the calculation of weekly compensation made pursuant to section 40 would be nil. That it is therefore necessary to focus on December 1993 and whether the appellant suffered from an incapacity at that time. 2 . That having regard to the test for incapacity in section 37 of the Act prior to its amendment in 1996 the appellant must demonstrate that she was unable to engage in her employment in December 1993 and that the reason for that was her personal injury. 3. That the evidence demonstrates that when the appellant became pregnant in 1993 she took maternity leave from 6 December 1993 and had been working full-time up until that date. That that demonstrated that it was the pregnancy which established the need for maternity leave and her temporary cessation of employment. So that as at 6 December 1993 she was able to engage in her employment and therefore did not have an incapacity by reason of personal injury. However, he conceded in the months prior to taking maternity leave the appellant was experiencing some pain and struggling with her employment but this was exacerbated by the advancement of the pregnancy. That on the basis of the decision in Eason v ARCIC (28/94) the appellant prima facie was not incapacitated. 4. That the evidence showed that prior to taking maternity leave the appellant arranged with her employer to return to her employment after a year but then on a part-time basis only which is submitted was strongly suggestive that she recognised the ongoing need to care for her child. 5 . That in February 1996 the appellant had indicated to the respondent that she wished to return to work on a part-time basis, not only because of her disability, but because of her need to care for her baby. 6 There is no argument that as a result of the accidents in 1985 and 1991 the appellant suffered permanent disability for which she had been compensated. She had to give up work with her husband because of its physical nature and obtained her employment with Inland Revenue Department and continued to work there until the pregnancy required her to leave in December 1993. The evidence also establishes that during this period the appellant did suffer pain in her back which was the result of her previous accidents and her underlying spondylolisthesis. I agree with Mr Barnett's submission that in order to qualify for weekly compensation, the date for incapacity must be established as at December 1993 rather than December 1994. While Mr Rowlett submitted that in the unusual circumstances of this case, the test for incapacity could be assessed as at the date she ceased work to commence maternity leave but compensation be suspended until the date upon which that leave expired, I do not consider that this is a valid argument. The test for incapacity has to be assessed at the date upon which she left for maternity leave otherwise, as Mr Barnett submitted, as at December 1994 a calculation of weekly compensation under section 40 would result in a finding that she had no entitlement because she had no earnings in the previous 12 months. It therefore follows that the correct date must be 6 December 1993. At that date, as was found by the Review Officer, the appellant was working full- time and had been for some eight years albeit with some restrictions and pain. However, at the time she ceased work it was not for the reason of her injury but for the reason of her pregnancy. This was her explanation to her employer that she proposed to take her entitlement to maternity leave and after the year proposed to work on a part-time basis. The appellant also confirmed in her evidence at the appeal hearing that had it not been for the pregnancy she would have continued to work full-time at Inland Revenue Department. In the circumstances the decision in Eason is applicable and I find that the appellant has not satisfied the test of incapacity under section 37. The appeal is dismissed. DATED at WELLINGTON this 13 day of June 1997 busunadula A W Middleton District Court Judge dc324-96.doc (nr)