VW v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 53/ 96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND 68/ 95 013/. IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN MARIE LEEANN RODGERS of Napier Appellant (Appeal No. DCA 127/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from the appellant and from Ms P J Zumbach with the request that I issue a decision on the papers. The issue is whether the respondent was correct to cancel the appellant's entitlement to weekly compensation and rehabilitation costs under s.73 of the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant suffered an injury to her back on 5 September 1986 while working as a kitchen hand. In the intervening period she received considerable assistance from the respondent in order to assist her rehabilitation. A report from her General Practitioner, Dr Dine of 1 October 1994 stated that while the appellant had been certified as fit for alternative work in 1991 "she has not found alternative work in the interim partly because jobs have not been available and partly because she is not qualified for work other than in the cooking industry". Dr Dine considered that while the appellant was unfit for her former job, she would be able to undertake work that didn't involve lifting or bending or 2 stretching. As a result of that information the appellant entered into an individual rehabilitation programme with a view to her return to the full-time paid workforce. It was agreed that the appellant would undergo a work assessment and she accepted a referral to Metier Placement Services for work placement assistance. The result of this was that she was given a work trial with Classic Sheepskins where she was employed as an outworker crocheting slippers at $8 per hour. It was arranged that she would commence work on 9 September 1994 and a file memorandum of 22 September 1994 from an employee of Metier Placement Services indicates that the appellant was going to "chuck the job". A further file memorandum on 17 October 1994 notes that the appellant had attended the respondent's office to state that she had had a car accident on 16 October 1994 as a result of which she had stitches over her forehead with major bruising to her eye and legs. On 14 November 1994 the appellant stated that her hand had also been injured in the accident and she could not continue with crocheting work. The respondent requested a report from Dr Dine who stated on 22 November 1994: "Injury 16-10-94. Treated at Napier Hospital. She sustained 2 lacerations of the forehead, one above each eye running diagonally above each eye & a V shaped laceration above the L ear. There was bruising above the eye. The lacerations were sutured. It is a little early to be sure how disfiguring these scars will be. No other sequelae are expected. Her ability to work is not affected. Return to employment. Miss Rodgers has been certified fit for alternative work since 1991 but no suitable work has been found for her. This is not surprising as Miss Rodgers cannot sit for long or stand for long. She is not able to lift or to bend without discomfort. She cannot concentrate or hand work for longer than 11/2 hours. She can walk only short distances. She could manage only light sedentary work which permits a change of position every hour or so." On 24 January 1995 the respondent notified the appellant that because of her failure to comply with the provisions of the rehabilitation programme the respondent proposed to cease further assistance pursuant to s.73 of the Act. The appellant applied for a review of that decision. In her application for review she stated: "I feel Metier Placement have not helped me since my car accident when I had to give up Classic Sheepskins due to a hand injury. I did not quit I am unable to do that line of work at the present time". The review officer obtained details of the hospital records which show that she attended the hospital on 16 October 1994 and the clinical summary states: "Leeann was involved in a motor vehicle accident in head-on collision. She was a back seat passenger in the vehcile (sic) not wearing a seat-belt. She was 3 transiently concussed. General health otherwise good. No fractures of the underlying facial or frontal bone skeleton." The report from Classic Sheepskins indicated that the last payment to the appellant was made on 16 October 1994 which was her termination date. At the review hearing the appellant stated that she had been working up to the time of the car accident and had advised Classic Sheepskins two weeks after the accident that the hand injuries she had sustained in the accident made it impossible for her to continue with the work. The review officer considered that the medical evidence did not support the appellant's claim and upheld the respondent's primary decision. In her notice of appeal the appellant stated: "... My hand injury along with my leg injury does not appear on the initial hospital report as the hospital did not tend those injuries. After my accident my whole body was bruised and sore - at least for 3-4 weeks and ACC feel my injuries shouldn't have prevented me from working, some days it was hard enough just to get up in the morning. I rung Classic Sheepskin, (sic) told them of my situation and they said if I was not feeling up to the work to return my outwork ... My work trial didn't get off to a very good start. I believe it is marked on the file that I said I was going to quit. What is nor marked on the file is my reason why, for three weeks ACC mucked my pay-up and as I live on a weekly budget this was causing great problems. I then worked out with Classic Sheepskin (sic) to earn $50 gross which didn't affect my pay at all. ACC also had my dates I finished at Classic Sheepskin wrong as well. I did not finish until after my accident (accident date 16/10/94)." In her submission the appellant has supplied an undated report from Dr Dine which states: "December 1995. Left hand painful - dorsum of mid-shaft of metacarpals 3 & 4. Flexing of fingers gives a "gristly feeling". I confirmed crepitus here? Tesosynovitis. 9 Feb 1995. Hand injury prevents doing handwork for Classic Sheep Skins (sic). 10 March 1995. Handwork limited by pain in left wrist. 1 May 1995. Impressive bruising on dorsum of left wrist & hand. Flexing fingers leads to pain shooting up the dorsum of the arm. P.D. Tenosynovitis. 22 May. Swelling of dorsum left hand comes & goes." 4 The appellant submits that this report confirms the injury to her hand. She has submitted that difficulties in the respondent's office in relation to payments due to her have caused all her problems. She submitted that the information obtained by the respondent from Classic Sheepskins was incorrect and that she did not finish work until after the accident. Ms Zumbach referred me to s.18 of the Act which states: "18. Right to rehabilitation --- Every person who has suffered personal injury for which the person has cover under this Act is responsible for his or her own rehabilitation to the extent possible have regard to the person's condition and is entitled to the extent provided by this Act to rehabilitation necessary to enable the person to lead as normal a life as possible, having regard to the consequences of his or her personal injury." Ms Zumbach further submitted that in terms of s.73 of the Act the respondent may cease payments to a person in receipt of compensation and rehabilitation assistance if the information available to the respondent satisfies it that the person is not entitled to continue to receive such assistance and further that the respondent may cease payments because of the unreasonable refusal or failure of a person in receipt of assistance to comply with any requirement made under any provision of the Act or not failing to comply with an individual programme. The onus is on the appellant to satisfy the Court on the balance of probabilities that the decision of the respondent and the review officer was wrong. The appellant is required by s.18 to take the responsibility for her own rehabilitation to the extent that that is possible having regard to her condition. While Dr Dine stated in November 1994 that notwithstanding the effects of the motor vehicle accident on 16 October 1994, the appellant was still fit for selected work and could do hand work his subsequent report submitted by the appellant shows that on 10 March 1995 he considered that hand work was limited by pain in the wrist. There is nothing in his report which attributes the injuries to her hand to a motor vehicle accident on 16 October 1994. In fact there has been no report from any doctor which indicates that she suffered injuries to her hand in that accident I agree with Ms Zumbach's submission that having regard to the decision in McDonald v ACC issued in the District Court in Wellington under No. 15/94, the appellant was capable of doing the work at Classic Sheepskins and that therefore the requirement that she continue with that work was reasonable. I agree with Ms Zumbach that the medical reports indicate that the work which was found to be available for her in that position was within her capabilities. In the circumstances I consider that the appellant has not satisfied the onus on her to show on the balance of probabilities that the decision of the review officer was wrong and the appeal is dismissed. DATED at WELLINGTON this 2 day of ugust 1996 guemadean AWW Middleton District Court Judge c12795.doc(rd)