Morgan v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. |44 197 HELD AT CHRISTCHURCH IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN LEONELLE FRANCES MORGAN Appellant (Appeal No. DCA 94/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 26th day of June 1997 APPEARANCES P H B Hall for appellant C Taylor for respondent DECISION OF JUDGE D A ONGLEY This appeal concerns a question of reasonableness of the Corporation's requirements for the appellant to provide medical certificates in respect of days when she is unable to work because of the occurrence of migraine headaches. The circumstances of the case are a little unusual because the appellant's incapacity occurs intermittently, but the underlying cause is continuous. The appellant suffered falls in 1975 and in 1987 both causing injury. The medical information indicates that, after the first fall, she suffered intense headaches frequently associated with nausea and vomiting. The headaches would last between three and five days. The fall in September 1987 precipitated worsening of the headaches and for a while she was getting them 50% of the time. The headaches are considered to be migrainous in - 2 - nature and it has been accepted that they are brought on by neck injuries. The Corporation has expressed some concern that there is an over attribution of symptoms to the accidents for which the appellant has cover, but for the purposes of this decision, there is no evidence other than that the migraines are a result of the ccidents. During 1993 and 1994 the Corporation accepted proof of the days when the appellant was unable to work by receiving C15 medical certificates completed by her doctor, with a list of dates attached to each medical certificate. The certificate delivered on 7 April 1995 referred to an attached list of 44 days. Corporation staff noted that one of those days was New Years Day 1995 and that several of the days were Saturdays. The Corporation then made an inquiry to establish when the appellant had consulted with her doctor. That information was obtained and compared with the list of dates accompanying the medical certificate, and the Corporation agreed to pay weekly compensation only in respect of the dates of incapacity that coincided with a medical consultation in reasonable proximity of time. The Corporation then notified the appellant that it would require, in the future, that the appellant consulted with her doctor at the time of her incapacity before she would be entitled to claim weekly compensation. The reason for that requirement was put in a letter of 1 1 September 1995 as follows: "I considered your request for retrospective payment but have concluded it would not be appropriate to pay for days in relation to which no medical opinion is available. Entitlement to receive any payments from the scheme does depend on medical and other evidence being available. Such a requirement is common to many insurance based schemes. In the past we may not always have requested verification of days you had not worked. We proceeded on the basis there was opportunity for us to check circumstances with your general practitioner, but we did not actually make any enquiries. Certainly we reserve the right to enquire ... Whilst Dr Averis had endorsed the list that endorsement had little meaning as we found on our subsequent enquiries. Unfortunately he did not have any information in relation to some of the dates which you had claimed." The applicant applied for review of that decision. The review officer considered that the requirement was reasonable and that the Corporation should not have to pay for days that were not proximate to a medical consultation in respect of the claim of 7 April 1995 or in respect of future claims. The appellant appealed from that decision. On the hearing of the appeal, counsel for the appellant submitted first that it was unfair for the Corporation to reject a large part of the April 1995 claim, because the appellant had been led to understand that the Corporation would accept claims in the form in which she had been submitting them up to that time. She had no advance notice that the Corporation would change the requirements in relation to medical certification. The review officer had dealt with that question on the basis that it was reasonable for the Corporation to require a medical consultation close to the days for which claims were made, although it would not have been reasonable to require a consultation to have occurred on every day. The Corporation had not known that consultations were not happening until it noticed the oddity of a claim having been made for 1 January 1995, and it then looked behind the certificate and found that - 3 - consultations were not occurring. I think that the reasoning adopted by the review officer was correct. It does not appear that the Corporation had at any time approved a practice of rendering medical certificates without consultation, and it was only when inquiry was made that the Corporation found that the certificates did not meet its ordinary criteria. Counsel for the appellant then argued that the manner in which the review officer formulated the procedure for future certificates still involved an element of unreasonableness. The statutory provision is s 64(1)(a) of the Accident Rehabilitation and Compensation Insurance Act 1992 which states: 64. Responsibilities of claimant - (1) Every person who claims for or is in receipt of any rehabilitation, compensation, grant, or allowance shall, when reasonably required to do so by the Corporation, (a) Give to the Corporation the prescribed certificate of a registered health professional as to such matters, and containing such information, as the Corporation requires: . .... ... The requirement approved by the review officer was for the appellant to provide a medical certificate for every period of incapacity and to obtain that certificate on the day of incapacity occurring or at least within 24 hours of that incapacity, but if for any reason the appellant was not able to get to her doctor or any other doctor within the period of 24 hours, the Corporation would accept a note from her doctor's nurse. It can be assumed that it was intended that the period of 24 hours would extend from the end of a given period of incapacity, although that is not spelt out. Counsel submitted that the formula approved by the review officer cast an unnecessary burden on the appellant and her medical practitioner, and merely caused stress which in turn would exacerbate her condition. There is no medical evidence that that is the case, but it can easily be understood that some degree of stress would be involved in the need to seek an appointment and obtain a certificate frequently and within set time periods. It was submitted that the appellant would be placed in the position of having to seek an appointment while she was incapacitated through migraine and when she could not know when she would be fit enough to attend an appointment, or otherwise she would have to wait until the symptoms were relieved and then occupy part of the day in arranging an appointment and sitting in the doctor's waiting room. I think there is some force in that submission. This is different from the usual case where the Corporation is concerned to have a considered medical opinion as to whether a claimant is suffering incapacity. The material on the file indicates that the doctor would not be able to ascertain by examination that the appellant had been suffering a disabling migraine, but would have to take her word for it. The underlying problem has persisted for some time, and there is no suggestion that frequent consultations will enable the appellant's doctor to give any treatment to the appellant or any advice to the Corporation other than to confirm that the appellant says that she has suffered a disabling migraine for one day or a number of days in succession. It is little more than a record keeping exercise. It might have an effect in discouraging the 4- appellant from claiming weekly compensation in respect of some days when she is in fact able to work, however, there appears to be no suggestion at all that she has mis- led the Corporation about the days when she has been unable to work. In fact, there has been no suggestion that she did not suffer migraine on 1 January 1995, nor on the Saturdays that were included in the list accompanying the April 1995 certificate. In my view, it would be reasonable to require some reliable system of record keeping and a periodic medical consultation so that the doctor is able to observe the progress of the appellant's condition, to provide her with treatment and advice, and to certify reliably to the Corporation whether her medical situation continued as it was, or whether an change in circumstances relevant to her eligibility for compensation occurred. The material before the Court indicates that consultations several times each month serve no medical purpose, nor do they assist the Corporation, and the requirement for unnecessary consultations is in my view unreasonable. That would not be the case if there was any suggestion of fraudulent or misleading behaviour. If the appellant had mis-led the Corporation about the days on which she was suffering migraine headaches, it may well have been reasonable for the Corporation to impose some additional reporting requirement in order to raise the appellant's consciousness of the need for honesty and accuracy. That does not appear to be a feature of this case. In relation to the Saturdays, the appellant informed the review officer that she had deleted some weekend days but "obviously not enough". Counsel submitted that the appellant is in fact required to work on some Saturdays. Her occupation is that of a self-employed educational consultant. It seems to me that the real question that the Corporation needs to address is to identify the days upon which the appellant would have to work if she was not suffering migraines. For example, it may well be that if, in a particular five day working week, she planned four days work but was incapacitated for two days, she might be entitled to claim for only one of those days. If she planned five days work she would lose two days. Compensation for loss of Saturday work would no doubt depend on the appellant establishing that the Saturday would ordinarily have been a working day, or would have been used as a make-up day if she had not been incapacitated. The problem facing the Corporation is not one of identifying the days of incapacity, but of calculating weekly compensation once those days are known. In proving incapacity, counsel for the appellant suggested that the Corporation should accept telephone consultations with the appellant's doctor or the doctor's nurse during which she could describe her symptoms and the call could be recorded. Counsel said that the doctor's surgery was prepared to maintain a diary record along those lines. That appears to be a reasonable means of maintaining a cross-check on the appellant's own diary and maintaining continuity of medical supervision, provided there are reasonable periodic consultations in person. It is reasonable, in my view, that the appellant should attend her doctor at least once a month and that a C15 certificate should be provided at least once a month. The appellant should be required to maintain her diary of migraine days as she does at present, and she should support that by arranging for the surgery to maintain a diary or card including all the telephone calls and a short note of symptoms, in addition to the usual record of physical consultations. 5 - In respect of the April 1995 certificate, the Corporation should accept the correctness of the dates as representing the days on which the appellant was unable to work because of migraine. The Corporation had accepted certificates including a number of months up until that time, and the appellant had not been alerted to the need to change the reporting system. There is no suggestion that the incapacity claim is false or even unreliable. The real problem is the calculation of weekly compensation. For those reasons, the appeal is allowed. The appellant will have costs of $650. DATED at WELLINGTON this | 4 day of July 1997 D A Ongley District Court Judge