Owston v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT NAPIER Decision No. 40 5 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN LAMES OWSTON of Flaxmere 64 95/ 0065 Appellant (Appeal No. DCA 3/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 21st day of March 1995 APPEARANCES D Johnson for appellant G L Gowland for respondent DECISION OF JUDGE A W MIDDLETON The appellant appeals against the decision of the respondent confirmed by the Review Officer in which it declined payment of weekly compensation under s.37 of the Accident Rehabilitation and Compensation Insurance Act 1992 for the period prior to 22 June 1994 and under s.39 for the period after 22 June 1994. The appellant lodged a claim with the respondent in January 1993 claiming to have suffered repetitive use syndrome of his right thumb and hand in his 2 occupation as a carpenter. He claimed to have suffered the injury on 13 May 1992. In support of his application he submitted a certificate from Dr Scoones dated 19 January 1993, Dr Scoones at that time being a locum for the appellant's regular doctor, Dr C E Jones. Dr Jones submitted a report to the respondent on 6 March 1993 in which he stated: "This patient presented to me on the 17 June 1992 with a painful right base of thumb which he said had been there since the 13 May 1992 after hammering a lot. He had carried on working hoping it would settle by itself but it was becoming painful. On examination it was swollen and tender at the base of the thumb and I queried a fractured (sic) but an x-ray taken of both hands on the 17 June 1992 showed no fractures. The claim was excepted (sic) with the claim number C211506. He returned back in January 1993 still complaining of trouble with this thumb saying it never really settled but he had been boxing on with his work. Physiotherapy was started but there has been no improvement. He came back on the 16 February and I have organised further x-rays and have referred him to Mr Fred Phillips for further specialist attention. He does not suffer from any other medical condition and he has been fit and healthy otherwise." The file records that on 1 September 1993 the respondent notified the appellant that he had been accepted for cover in respect of his injury. The next matter of interest on the file is a certificate by Dr Wiggins dated 22 June 1994 in which he certified that following a bone scan the appellant was diagnosed as having a avascular necrosis to the right trapezium which will require splinting to allow healing. The doctor certified him: "unable to work because of this injury for passed (sic) two years. ERC should be backdated to date of injury." On 6 July 1994 the respondent advised Dr Wiggins that the appellant's claim for weekly compensation could not be granted because of lack of medical certification to cover the period from 13 May 1992. The appellant applied for a review of that decision. On 20 September 1994 Dr Jones provided a further certificate in which he stated: "This is to confirm that I did see Mr Owston regarding this injury. He first presented on the 17.6.1992. The injury did interfere significantly with his ability to work the unfortunate problem was that at that time despite the specialists assessment the correct diagnosis had not been made and it was hard to relate his symptoms to non evident injury. I feel in retrospect I had seen Mr Owston severl (sic) times since his original injury that he would have been unable to continue his carpentry at all." 3 The appellant applied for a review of the decision declining the payment of earnings related compensation and in the application stated that he had suffered the injury on 13 May 1992 while hammering. He said that he had consulted Dr Jones on 17 June 1992 and continued to have pain and eventually was referred to Mr Phillips whom he saw on 28 October 1993. He again saw Mr Phillips in November 1993 but continued to have pain in the thumb. He said that in March 1994 he transferred to Dr Wiggins who referred him to Mr Lawson, who arranged for x-rays and a bone scan. On 20 June 1994 Mr Lawson made a report to Dr Wiggins regarding the bone scan. That report states: "The bone scan of James' wrist shows evidence of significantly increased uptake in the right trapezium and slightly increased uptake in the right triquetral. I think that this is evidence that he has had a very real injury to the trapezium and he is probably experiencing an avascular necrosis which is in the resolution phase. I think that he should avoid any activities which precipitate the pain and I have given him a wrist splint today. I think that the natural history of this is that the trapezium will re- vascularize and he shouldn't have long term problems. However he will need to be off work until this resolves." Or Wiggins wrote to the Review Officer in support of the appellant and his letter of 17 November 1994 states: "I'm writing in support of James application for review regarding earnings related compensation following his injury in may 1992. He was first seen by his GP on 17 June 1992 and had x-rays of both hands. There was no evidence of any fracture at that stage. He was seen several times in 1993 by his GP. He had his thumb x-rayed a second time and was referred to Mr Phillips. He was seen on at least two occasions by Mr Phillips and also received both physiotherapy and acupuncture during that year. He transferred to my care in March 1994 and I have seen him on several occasions during the year. He has been referred to Mr Lawson who has also seen him on three or four occasions and has had further x-rays. I expect the majority if not all of these encounters have initiated a claim which has been paid by ACC. It seems to me that there is no dispute that Mr Owston has a personal injury by accident. 4 Mr Owston also had several other investigations at the CHE and these may well have resulted in a claim from ACC. Mr Owston's previous GP did not complete a c14 although one was completed by locum in January 1993. She did not indicate whether or not he was fit nor unfit for work at that stage. In June 1993 his previous GP completed a c15 indicating he was fit for selected duties. When Mr Owston first came to see me I more concerned about investigating and treating his problem and also overlooked the need to complete documentation enabling him to obtain earnings related compensation. In June 1994 after I received proof as to why he was troubled with continuing pain in his wrist I completed a c15 with him unfit for work. At that stage he was in a splint and later in a plaster cast. This claim for ERC was declined. It seems to me that ACC has adequate documentation indicating that Mr Owston has a personal injury by accident and from the claims history should be able to determine that Mr Owston was attending various agencies regularly for investigation and treatment. It is certainly not Mr Owston's fault that it took two years to identify the injury accurately. Neither is it Mr Owston's fault that the correct documentation was not provided. In fairness Mr Owston should be offered earnings related compensation in my view and be entitled to rehabilitation assistance." The Review Officer heard evidence from the appellant in which he confirmed that he had been in receipt of a Sickness and an Unemployment Benefit for over two years. He said that following the incident in January 1993 he had tried to "box on" with his work but the pain precluded him from doing so and he had not worked. This appeared to be corroborated by information from Acacia Homes Limited which confirmed that the appellant had been working on a contract with it and that there was then a small balance outstanding to the appellant. The appellant confirmed that he had suffered pain since May 1992 and was concerned that his medical advisers had failed to properly supply certificates to the Corporation. He also submitted that following his transfer to Dr Wiggins the true extent of his problem had been diagnosed. The Review Officer noted that the appellant had submitted that he made regular visits to his GP and that regular medical certification of his inability to work had been supplied to the Department of Social Welfare in support of his continued receipt of a Sickness Benefit. He submitted that the failure to supply this information to the respondent was because the GP had not been able to properly identify that the problem was injury related. The Review Officer confirmed the longstanding policy of the respondent and the Appeal Authority that retrospective certification of injury must always be treated with some degree of 5 caution. The Review Officer was concerned that apart from the appellant's own testimony she had received no evidence of incapacity for the period in question although the respondent had accepted a claim. The Review Officer was concerned that Dr Jones did not consider that the appellant suffered from a medical condition when he was first consulted and found that Dr Jones' subsequent letter rather contradicted his first report. The Review Officer considered that on the basis on which reports had been supplied she could not accept that the retrospective certification met the test of incapacity provided in s.37 of the Accident Rehabilitation and Compensation Insurance Act 1992 for the period prior to 21 March 1994 when Dr Wiggins first saw the appellant. She held in addition that as the appellant was not an earner at the time he consulted Dr Wiggins and had then not been an earner for some 18 months he did not qualify for weekly compensation under s.39 of the Act. Mr Johnson submitted that the appellant sought advice from Dr Jones approximately four weeks after the accident in May 1992 but that Dr Jones was unable to make an accurate diagnosis of the injury. However he submitted that a C15 certificate was supplied then but the question of cover was in doubt as a result of which the appellant applied for a Social Welfare Sickness Benefit which he has continued to receive except for a period between May and September 1993 when he was out of the country. Mr Johnson submitted that after being referred by Dr Wiggins to Mr Lawson the true extent of the appellant's problems was properly diagnosed and Mr Lawson was able to certify that the injuries were traumatic in nature having had the benefit of a bone scan. Mr Johnson submitted that it was on the basis of this information that Dr Wiggins was able to certify that the appellant was unfit for work because of the injury to his right wrist. It is also submitted that when Dr Jones became aware of the true extent of the appellant's problems he was able with hindsight to accept that Mr Lawson's findings were consistent with the problem he saw but which he could not diagnose. Dr Jones was also able to confirm that the appellant had seen him on several occasions and had always presented with the same symptoms. Miss Gowland submitted that the Authority should be cautious in considering retrospective certification. However she did refer to the decision in Allen (113/92) in which the Authority held: "While it has been accepted that retrospective certificates by themselves are not generally accepted in support of a claim it is necessary to consider the whole of the evidence before rejecting such a certificate. When one considers the totality of the evidence in this case there is a clear picture of a person suffering the same disability as a result of the same injuries through the whole of the period in question and it is really only because of the lack of intermediate certificates that the claims have been rejected. (emphasis added)" 6 Miss Gowland submitted that the decision in Allen could be distinguished from the later decision in Lamb (17/94) in which that appellant had submitted a retrospective certificate issued on 16 December 1992 certifying that he had been unfit for any type of work for 13 weeks or to 24 October 1992. The Authority distinguished Allen because there was no contemporaneous medical evidence to cover the period and that the retrospective certificate was not based on clinical evidence and there was no other evidence of continuing disability. Miss Gowland submitted that for the period prior to June 1994 there was no clear contemporaneous medical evidence to show incapacity from 13 May 1992 to March 1994. I consider that this case has some unusual aspects. The appellant appears to have been working on his own as a carpenter and suffered problems with his right wrist in May 1992 but in spite of the pain tried to carry on with his work until he consulted Dr Jones the following month. Dr Jones was unable to provide a specific diagnosis but did not refer the appellant for further treatment although an x-ray disclosed no fractures. However Dr Scoones' original diagnosis raised the question of "damage to joint + ligaments". The history then continued with the appellant's assertion, which does not appear to be discredited in any way that he was unable to work and had been in receipt of a Social Welfare Benefit which required regular medical certification of his inability to work. It was not until the appellant was referred by Dr Wiggins to Mr Lawson who arranged for a bone scan that the true nature of the appellant's complaints was properly diagnosed. All the medical personnel who have been involved with the appellant's care accept that with the benefit of hindsight that the appellant's continued complaints of pain in the right wrist are consistent and are consistent with trauma. I accept that the Review Officer had to be cautious in her approach and carefully considered the medical reports and the appellant's evidence and had regard to previous cases. However taking a global view of the situation as I did in the Allen appeal I consider that there is sufficient evidence to persuade me that this appellant did suffer an accident on 13 May 1992 from which he has continued to suffer down to the present time and which has precluded him from engaging in his work as a carpenter for the whole of that period. Section 37 provides a test of incapacity which is that: "For the purposes of this part of this Act whether or not a person to whom this Act applies is incapacitated shall be determined by whether or not a person is, by reason of his or her personal injury unable to engage in employment in which the person was engaged when the personal injury occurred." 7 I am satisfied on the totality of the evidence that this appellant meets the test of incapacity and the appeal is allowed. The file will be returned to the respondent to make the necessary assessments. There will be costs to the appellant of $700. DATED at WELLINGTON this -8 day of APRIL 1995 Judge A W Middleton DCA3-95.doc(19)