Fowler v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. |29 /98 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 MICHAEL JOHN FOWLER DCA 405/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 27th day of May 1998 APPEARANCES: Mr A R Rowlett for appellant Mr B A Corkill for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation's decision to cancel weekly compensation, on the basis that the appellant was no longer incapacitated within the meaning of section 37A of the Act from 15th July 1997, was correct. 2 BACKGROUND The appellant is a Prison Officer and at the relevant time was 61 years of age. He had been employed in the prison service for 18 years. On the 27th of January 1997 the appellant was standing on a stool searching a cell, the stool was unstable and he stepped back off the stool and felt a sharp pain in his lower back. The back pain increased over the next two days. His diagnosis was a lumbro-sacral disc prolapse and he was certified unfit for work. It is to be noted that the appellant has had a history of back injuries and also of back pain and has a 30 year history of intermittent, chronic lower back strain. Xrays confirmed that he had multi-level degenerate osteoarthritis of the lumbar vertebral segments with some anterior compression of the superior body of 15 and extensive osteophytes in the inferior surface. In addition to the appellant's back injury, he did in May 1997 undergo a coronary artery bypass graft at Wakefield Hospital in Wellington but it is not in dispute that at the time of this operation he was still incapacitated from the back injury sustained in January 1997. The appellant made a good recovery from his heart operation and a medical report dated the 18th of June 1997 from Mr Christopher Williams, orthopaedic surgeon, was that he has a stable degenerate spine with neural foraminal encroachment secondary to osteophyte formation and some previous disruption of the L5 vertebrae. In a letter to the Corporation dated 4th July 1997 Mr Williams stated: "Mr Fowler expressed considerable concern regarding the increasingly physical nature of his work with inmate contact at the prison. Although he copes very well 3 with normal day to day activities, situations which place him at physical risk and particularly require him to perform sudden heavy lifting or physical restraint of inmates, does have the potential to reproduce or exacerbate his lower back symptoms. It would be unlikely for such an event to cause a catastrophic permanent injury to his spine, however, excessive strain injuries to the back with his background of osteoarthritis degenerative changes, may well necessitate protracted periods of time off work. With this in mind, I am sure the best solution in Mr Fowler's case is a return to work within the prison employee structure, in a job which minimises the risk of him being involved in future physical confrontations with inmates. Within this environment, and as long as there is little heavy lifting involved, I think he should be able to return to work in a full time basis. I think his current rate limiting step in terms of returning to work, is his recovery from his coronary artery bypass grafts, and not ongoing lower back symptomatology at this time. I would expect once the cardiac surgeons in Wellington have cleared him for a return to work, that his current back pathology would not prevent this. At this time therefore, I do not consider any percentage of his current incapacity for work should be ascribed to his back problem.' It was on the basis of this advice that the Corporation advised Mr Fowler by letter dated 15th July 1997 that it had information that he was no longer incapacitated from his accident related back injury and therefore no longer unfit for work as defined under section 37A of the Act. He was advised that weekly compensation would therefore cease on the expiry of his current medical certificate, namely 4th August 1997. It is a fact that the appellant did not return to work because of his apprehension of the risk of injury in carrying out his normal prison officer duties and it was not until the 6th October 1997 that he did return to work having by that time 4 negotiated with the Department of Corrections that he undertake special duties which would involve minimal inmate contact. Thus it is that in monetary terms this appeal involves a question of an entitlement to two months weekly compensation. The relevant statutory provision is section 37A of the Act which states: "(1) For the purposes of this Part of this Act, the Corporation shall determine the incapacity of a person (other than a person to whom section 37B of this Act applies) in accordance with this section. (2) The object of a determination of incapacity under this section is to determine whether or not the person is, by reason of his or her personal injury, for the time being unable to engage in employment in which the person was engaged when the personal injury occurred. (3) The Corporation may make a determination under this section at any time and from time to time, and, in so doing, the Corporation may obtain such professional, technical, specialised, or other advice from such persons as it considers appropriate. (4) If the Corporation determines under this section that a person is able to engage in employment in which the person was engaged when the personal injury occurred, then -- (a) If the person is not at that time receiving weekly compensation under this Act for loss of earnings, that person shall not then be eligible to commence receiving weekly compensation for such loss: (b) If the person is at that time receiving weekly compensation under this Act for loss of earnings, that entitlement shall cease immediately and the power to assess the person under section 51 of this Act shall no longer be exercisable." Counsel for the appellant contends that the medical evidence establishes that the appellant was not fit for normal duties as a prison officer because of the potential for further injury which was always present when the normal duties of an officer involved constant prisoner contact and the prospect of a violent altercation. The appellant's position was that with his back being as it was he would not be able to come to the aid of any fellow officer or indeed of looking after himself should he himself be confronted in a physical confrontation with an inmate. Counsel for the respondent contends that the medical evidence establishes that the appellant can carry out the particular tasks which are his normal work duties. Those duties do not include heavy lifting or physical movements which he would be incapable of doing or which if he did them would cause damage to his back. Thus if all was sweetness and light he could return and carry out his normal duties as a Prison Officer. It was counsel for the appellant's contention that until the appellant had negotiated with the Department of Corrections for special duties which minimised inmate contact, but which were not part of a Prison Officer's usual expected duties, he was not capable of returning to his usual employment. Counsel for the respondent submitted that the test was whether he was fit for his normal employment tasks, not whether the employer would accommodate him in some special way that might make his work easier. Counsel submits that by the time of Mr Williams' letter of 15th July 1997 the appellant was capable of carrying out the tasks which the Department subsequently formulated for the appellant's return to work. Counsel for the appellant submitted that the test must be that the appellant be fit and able to carry out all or any of the duties expected of a prison officer and until such time as that was the case or there was some special arrangement established, this was not the case with the appellant. 6 From the evidence given by Mr Fowler at the review hearing it is clear that the threat of physical confrontation between prison officers and inmates is ever present and being able to deal with it is part and parcel of a prison officer's lot. The medical evidence was that the appellant could carry out the duties of a prison officer if it did not involve him being subjected to the possibility of physical confrontation either between he and an inmate or in a situation where a fellow officer would be reliant upon him for assistance. In those circumstances the evidence was that his physical condition would not be able to withstand that physical engagement without sustaining further injury. Accepting that as I do, I find that merely because the fact of physical confrontation is not actually part of normal duties does not mean that it is not an integral part of the employment environment. At the first moment of a physical confrontation the fact of the matter is that the appellant would not have been capable of carrying out his pre-accident employment. That is, defend himself or assist a fellow officer. Accordingly then it must be that the appellant was still incapacitated within the meaning of section 37A on the 15th of July when the Corporation determined that he was fit to return to work. It is to be noted that the Corporation did not carry out any assessment under section 51 to determine whether the appellant had a capacity for work so the other provisions of section 37A do not apply in this case. Accordingly then I rule that the Corporation was in error in determining that the appellant no longer satisfied the test of incapacity and for the sake of clarity this Court rules that the appellant did have an incapacity until he resumed employment on special duties on 6 October 1997. 7 For the foregoing reasons this appeal is allowed and the decision of the Corporation is revoked. DATED at WELLINGTON this 16 th day of June 1998 M J Beattie District Court Judge Fowler.doc KD