Schwalger v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT \tVELLINGTON Decision No. :7 1j /9-! UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act 77- 93. 25412 BETWEEN LUI SCHWALGER of Stokes Valley Appellant (Appeal No. DCA 61/94) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondenf HEARD on the 22nd day of September 1994 APPEARANCES KB Campbell for appellant. VJ Hammond for respondent. DECISION OF JUDGE AW MIDDLETON The issue in this appeal is the appellant's entitlement to earnings related compensation under the Accident Rehabilitation and Compensation·Insurance Act 1992. 2 - . . The appellant originally suffered a strain to his back on 2-1 January 1992 ·when lifting a heavy transformer in the course of his employment. The back problems continued during 1991 and 1992 and he apparently still has back problems. The appellant was dismissed from his employment on 27 August 1992 as a result of issues other than his health problem. He consulted Dr Wong on 14 September 1992 when Doctor Wong issued a C15 certificate stating that the appellant was then unfit for work for one week. The certificate noted that he had continued back pains with right sciatica. The appellant continued to see Dr Wong with this complaint until April 1993 during which period Dr Wong issued C15 certificates. When the appellant complained to the respondent about the assessment of his relevant earnings, the respondent realised that it had not considered the question of whether the appellant could be deemed to be an employee under s.44 of the Accident Rehabilitation and Compensation Insurance Act 1992. On 31 May 1993 the respondent advised the appellant that he had no entitlement to weekly earnings as the respondent considered that pursuant to s.44 he could not be deemed to be an employee at the time of his incapacity for work because he - had not been an employee within 14 days before the commencement of the incapacity. The respondent reported to the appellant that in its view his last day of employment was 27 August 1992 and that his first day of incapacity was 14 September 1992 when-he consulted Dr Wong. The appellant applied for a review of that decision and in his evidence before the Review Officer he stated that he had suffered a further accident about the 2nd of September 1992 when he had a problem with his back while working in the garden. He told the Review Officer that he could recall working in his garden approximately five days after he had ceased work and had suffered a reoccurrence of his previous back problem. He did not seek medical treatment or advice until some 12 days later because he said he had an adeq1:1-ate supply of pills previously provided by Pr Wong. .The Review Officer in his decision referred to this incident as the "garden incident" _ which he considered did•not have sufficient medical confirmation to warrant his overturning the Corporation's primary decision. In addition, the Review Officer held that he was obliged to follow the respondent's policy requirements which required him to be satisfied that there was a medical certificate available to establish the true date of incapacity. Mr Ca m p_bell subn:utted that there are three issues for decision by me, they being: . . "1. THE first issue for the _Court to resolve is whether or not the Corporation uias justified in terminating the Appellant's earnings related compensation pursuant to section 44(1)(a) of the Accident Rehabilitation and Compensation Insurance Act 1992 (hereinafter referred to as II the Act"). 2. THE second issue is whether or not the Corporation was correct in applyin_g the section to the particular facts of the case. 3 . - - 3. THE tlzird issue is zl'lzetlzer tlze rezi iew officer wns entitled to decline tlze rez•iew on the grounds tlznt tlze Appellant had not estnblislzed tlze injim; to lzis bnck wns due to an accident or was a re-occurrence of an old work related injrm;." Mr Campbell submitted that the suggested requirement to supply a medical certificate within the appropriate date was wrong in law because there is no such requirement in the Act. He submitted that I should have regard to sections 37 and 44(1) which respectively read: "37. Test of incapacity - For tlze purposes of this Part of this Act, whether or not n person to ·whom this Act applies is incapacitated shall be detennined by whether or not the person is, by reason of his or her personal in jun;, for the time being unable to engage in employment in which the person was engaged when the personal injun; occurred or, where [any of sections 44, 45, 46, or 49 of this Act applies], any other employment for which the person is qualified by reason of experience, education, or training, or any combination of them." - and: 44. Extension of entitlement to compensation for loss of earnings - (1) Where a person has ceased to be an employee, the person shall be deemed to continue to be an employe[! for the purposes of this Part of this Act if- _ (a) The person had been an employee within 14 days before the commencement of the incapacity; and (b) The person had been an employee for a continuous period of not less than 12 months immediately before that 14-day period; and (c) But for the incapacity, the person would have been an employee within 3 months after the commencement of the incapacih;." In addition, he submitted that the definition of incapaci_ty provided i:µ s.3 states: "In.capacity means incapacihJ for employment; and includes absence from employment by reason of necessan; health care treatment or service of a kind for_ which the Corporation or an exempt employer is required or permitted to make payments either directly or indirectly (irrespective of wlzetlzer or not it makes any payment in the particular case) in respect of personal injury covere d by this Act." _ Mr Campbell submitted that the finding of the Review Officer that eligibility could only be accepted provided a medical certificate with a date thereon is provided, is wrong. -He submitted that the date of incapacity can commence prior to the date upon which a person visits his or her doctor, and that therefore the Corporation policy has the result that it could exclude otherwise deserving claimants. He submitted that insofar as this appellant is concerned, he re-injured his back in his . garden some five days alter leaving his employment and in the hope that it Would get better did not consult his doctor until 14 September 1992. The doctor believed that the problem then was the reoccurrence of his previous back problems. Mr Campbell further submitted that the date upon which a person visits their doctor -:I: should not be deem_ed to be the date of incapacity a.s this would lead to severe injustice in many cases. Mr: Campbell submitted that the Review Officer was wrong to consider the issue of whether or not the appellant had suffered a new injury or a reoccurrence of his old work related injury because the review hearing was at no time considered to be dealing with the injury or whether or not it was personal injury by accident. He submitted that the purpose of the review hearing was to consider the respondent's decision to terminate earnings related compensation pursuant to s.34(1)(a) and the decision to terminate on a ground not canvassed at the review, could not be correct. Ms Hammond referred to various discrepancies in the evidence and, in particular, to various extracts from the transcript at the review hearing in which the appellant was unsure as to exactly what happened on that day. In the course of his evidence, the appellant had stated that he had been working in his garden and was not sure what had gone wrong but had pills which he could take. He was then asked, "What made him sure that it was an occurrence of his original back injury?11 and he stated, "Well, I wasn't too sure until I went to see the doctor". It seems clear from the transcript that he made little reference to the "garden • incident" in his evidence and hqrped back to the fact that his back had been getting worse since he had ceased work. A further discrepancy appears in his Application for Review dated 8 June 1993 in which he did not mention the garden incident and again referred to the fact that he had been incapacitated since he left work and it was as a result of having the injury at work and not after leaving work. Ms Hammond referred to several other items in the evidence which confirmed that the appellant did not appear to consider that the garden incident was the incident which prompted his incapacity. Ms __ Hammond refefred ni.e to my decision in Douglas Distric_t Court· Decision No: (24/94) which involved _the case of a _ seasonal worker who became incapacitate·d after his normal seasonal work at the Freezing Works but did not consult his doctor for one month. In that case it was held that that appellant did not require medical assistance until he saw his doctor, even though he claimed that his ongoing hernia condition had been getting worse. The decision was that · the evidence did not support an earlier date of incapacity than the date upon which he visited his doctor. I agree with Mr Campbell's submission that it is certainly not open to the Review _ Officer to canvass issues which were not-the subject of the respondent's prima:r:y decision. However, in relation to the appeal decision, I do not consider-that that issue is relevant. The principal issue is whether or not the respondent has properly applied the provisions of s.44(1)(a). It seems to be accepted by both counsel that the appellant did qualify under s.44(1)(b) and (c) but in order to succeed in his appeal he must also qualify under s.44(1)(a). 5 There_ is no argument that the appellant .ceased work on 27 August l992 and that he did not consult Dr vVong until 14 September 1992 which is 18 days later. The appellant suggests that he suffered a reoccurrence of his back problems by an incident in his garden approximately five days after the 27th of August 1992, but did not mention that incident to Dr Wong who has apparently accepted the back problem as a continuation of his original injury. While I agree with Mr Campbell's basic submission that it should not be mandatory that a medical certificate should be available as set out in the respondent's policy, there must be other strong and supporting evidence available if that is not the situation. I can accept that for the proper administration of the respondent's office, it is necessary to have guidelines which the staff can follow and that the requirement to produce a medical certificate would be the only safe method at the initial stages of a claim. However, if, for example, during the course of a review hearing there was evidence that a claimant had been confined to bed for a period of some time because of an inability to get to a doctor, then that might overcome the obstacle of not having a medical certificate within the required period. Further, as I would see it, a certificate issued in those circumstances would no doubt provide details of the incident which would have led to a claimant being bedridden and would confirm that his or her condition at the time the doctor was able to see the claimant was consistent with the claim that an accident had occurred on the alleged date. In this appeal the appellant has asked the respondent and the Review Officer, and now this Court, to accept his word that the alleged gardening incident occurred when he did not mention it to his doctor on the first visit on 14 September and has hardly referred to it since. I therefore have to agree with the Review Officer that on that basis the appellant-has failed to provide sufficient evidence to establish that there was such an incident in early September which would have brought him within the tim constraints in s.44(1)(a). 1:'he appeal is dismissed. Dated at Wellington the 30th day of September 1994 Judge AW Middleton 61/94.doc(mh)