Gooch v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 92 /97 HELD AT NAPIER 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 MARION ELIZABETH GOOCH Appellant (Appeal No. DCA 208/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 17th day of April 1997 D G Matheson for appellant F M Patterson for respondent DECISION OF JUDGE D A ONGLEY The question in this appeal concerned the Corporation's decision that the appellant was not eligible for earnings related compensation on the ground that she was not in employment at the time incapacity occurred. Although she suffered personal injury by accident while working as a nurse, there was some evidence of her recovery to an extent that brought the duration of her incapacity to an end. By the time further incapacity from the same injury occurred, she had left her employment for other reasons and the Corporation regarded her as disqualified from obtaining earnings related compensation because s 40 of the Accident Rehabilitation and Compensation Insurance Act 1992 applies only to earners who are earners immediately before the commencement of incapacity. - 2- The appellant suffered acute low back strain on 11 July 1994 while lifting in the course of her employment. She lodged a claim for compensation on 14 July 1994. At that time of her injury she was already considering resigning from her position as principal nurse. Whether or not the decision was precipitated by the injury, she did resign on 25 July 1994. She was frank in stating to the Review Officer that her resignation was for reasons unrelated to her back injury. Her resignation was to be effective from 16 September 1994. Despite her injury, and medical advice not to continue working, she did carry on working through to September. She then stopped work and received no earnings related compensation. In December 1994 she lodged two medical certificates, one of which certified incapacity from 19 September 1994 to 19 December 1994. The Corporation decided that there was insufficient evidence of incapacity during that period. The Review Officer upheld the Corporation's decision. There is significant medical evidence supporting the position taken by the Corporation: 1. On 16 September 1994 Mr D A Lawson, orthopaedic surgeon, reported to Or C Ellis, the appellant's general practitioner, that a CT scan of her lumbar spine showed degenerative changes but no major disc prolapse and that her symptoms had improved considerably. Mr Lawson said "In the light of this I do not think there is anything else we need to be doing at this stage. I have left it over to her to contact me should she have any further recurrence of her pain." 2. On 24 October 1994 Shelley Hickson, an acupuncture practitioner, reported that she had treated the appellant virtually every day over one month extending into August 1994 when the appellant's degree of pain decreased significantly, although she was still limping. Treatment continued until mid September and Ms Hickson last saw the appellant on 19 September 1994 when she was pain-free, walked with a slight limp, but was feeling good within herself. 3. Dr Ellis reported in March 1995 giving a short history of the initial period of incapacity from 14 July 1994 until she issued to the appellant a certificate of incapacity for three weeks from 29 August 1994. The appellant returned on 12 September 1994 and Dr Ellis agreed that if she did no heavy lifting or excessive bending she should be able to work. She continued slowly to improve. In early November, she reported a deterioration in her symptoms and requested referral to an osteopath. By 15 December 1994 she reported an improvement in that she was walking better but she could not sit for extended periods. 4. On 15 November 1994 the appellant confirmed by telephone that no further action by the Corporation was required. However, by a letter of 15 December 1994 she retracted that. She said that she had been optimistic but when she visited her doctor on 14 December Dr Ellis was of a different mind about her ability to perform some activities and had provided a further certificate of incapacity. Dr Ellis provided the backdated certificate at that stage and the Corporation did not accept its correctness. - 3 At the review hearing, the appellant said that she sought no further orthopaedic treatment after 16 September 1994 because that would only have been offered in the form of an operation that she did not want to undertake. She felt that there was a chance of complete improvement and suggested to Dr Lawson that she would prefer to attend an osteopath. She said that he agreed. She was not pain-free, although she had obtained some relief through acupuncture. She said that the pain came and went, and that she attended an osteopath from 31 August 1994 through to the end of the following January. A letter dated 13 July 1995 from the Hastings Osteopathic Clinic certified that the appellant had 23 osteopathic treatments during the four month period from 31 August 1994 aimed at restoring normal lumbar spine flexibility and function, but that progress was relatively slow. The letter stated that the appellant was in considerable pain and was advised not to do any heavy work in the form of lifting and bending which could aggravate her condition, furthermore that the tasks she was required to do as a nurse made her condition worse and compromised her healing ability. In fact she had ceased working altogether in the first phase of her osteopathic treatment. The Corporation's payment records also show that payments were made for frequent osteopathic treatment in September, October and November. The appellant received termination payments when she left work which effectively provided her with an income during September and October. The fact that she did not obtain certificates of incapacity to support an earnings claim over that period is not surprising and does not on its own carry any adverse inference. The Corporation rejected the backdated certificate of incapacity as insufficient evidence of a continuing incapacity after 17 September 1994. There have been a number of cases commenting on the use of backdated certificates including Schwalger 61/94 and Douglas 24/94 where retrospective evidence, in both case, was found to be insufficient to establish a claim. In this case, there is reason to reconsider the question on appeal, although it is not a case of the Corporation disregarding convincing evidence in favour of the appellant. It is evident that the Corporation applies certain policy guidelines in these cases and, where there is evidence that indicates unfairness consequent upon a policy approach, the matter should be considered in the round on review or appeal. The Review Officer delivered a detailed and careful decision, but in my view, it is not entirely clear whether the Review Officer gave sufficient weight to evidence that the appellant was undergoing osteopathic treatment more or less continuously after Mr Lawson's optimistic report on 16 September 1994 until she next attended Dr Ellis on 7 November 1994. It should be noted that the Corporation now accepts incapacity from 7 November 1994, but not as a continuation of the earlier incapacity, only as a separate period of incapacity which fails to qualify the appellant for s 40 earnings related compensation. In my view, it is artificial to regard the earlier incapacity as having come to an end. It was clearly serious at the time although the appellant continued to work. It is also clear that the appellant's incapacity in November 1994 was brought about by reason of the same injury. The factual question is whether the incapacity abated for a period of seven or eight weeks. - 4 - Due weight must be given to the appellant's oral evidence at the review hearing to the effect that her incapacity continued although it may have fluctuated. Her evidence is corroborated by the records of her attending for osteopathic treatment during that period, consistently with her continuing to experience pain. Her fitness to continue with nursing duties was not actually tested by her attempting to engage in employment, although she said she fully intended to find another job. It is not surprising that she was optimistic and not preoccupied with her compensation rights during that period and consequently did not seek certificates of incapacity. If her evidence is accepted, and there is no real indication that the Review Officer doubted her credibility, there is no real reason to suppose that her capacity abated, except to a relatively minor extent, during the period leading up to 7 November 1994. Ms Hickson had commented in a report that the appellant was pain-free on 19 September 1994, but the appellant told the Review Officer that she was experiencing intermittent pain and she had resolved that she would obtain further osteopathic treatment which she continued to undergo until the end of January 1995. The letter from the osteopathic clinic referred to her scoliotic posture when she presented at the clinic on 31 August 1994 and the fact that during her period of treatment she was in considerable pain and that the tasks she was required to do as a nurse were making her condition worse, compromising her healing ability and extending the period of disability and discomfort. For those reasons I find that the appellant's incapacity commenced at the date of the injury, 11 July 1994. The appeal is allowed. The appellant will be entitled to costs of $800. DATED at WELLINGTON this 9th day of May 1997 D A Ongley District Court Judge