Hughes v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 41 /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 PHILIP CORNISH HUGHES DCA 149/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 17th day of February 1998 APPEARANCES: Ms E Jones for appellant Mr S Condie for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is a determination of the period of the appellant's incapacity and in particular a determination of whether the appellant has been continuously incapacitated following a back injury he suffered on the 19th of March 1992. 2 In this case it is the appellant's contention that he has been continuously incapacitated since the 19th of March 1992 by the injury he suffered on that date. It is the Corporation's contention that the appellant has been incapacitated from the 6th of May 1994 only, being the date when he suffered a further injury to his back. There is no dispute that the appellant has established incapacity from the 6th of May 1994, but for the purposes of the quantum of weekly compensation to which he is entitled, the fixing of the earlier date for the commencement of incapacity would enable him to receive a substantially greater sum by way of weekly compensation than has been currently assessed. Accordingly the determination of the issue in this appeal involves an examination of the events from 19th March 1992 to 6th May 1994. Background Facts The appellant is a qualified carpenter with a trade certificate who immigrated from the U.K. to New Zealand in 1990. In March 1992 the appellant was employed as a carpenter by Fosters Construction Limited of Hamilton. He was employed as part of the work force building multi-storey extensions to Waikato Hospital. On the 19th of March 1992 whilst working on site the appellant was required, along with some other employees, to lift some heavy shutters. In the course of lifting one of these shutters the appellant said he felt a ripping sensation in the lower part of his spine. He experienced extreme pain causing him to drop the shutter and he was obliged to lie down. He could not resume work after this incident and went home. He says the next day he was unable to move and was assisted to go to Hamilton Accident & Emergency. 3 At the A & E he was examined and a course of physiotherapy was prescribed and he was certified as unfit for work for six weeks. After approximately six weeks off work, during which time the appellant received earnings related compensation from the Corporation, he returned to work for Fosters Construction Limited and thereafter until he injured himself in May 1994 he continued working spasmodically for various employers and in a self-employed capacity details of which are set out below. On the 6th of May 1994 he attended the Ponsonby Accident and Emergency Clinic for a back injury and at that clinic he completed an ACC claim form. That form states that at that time he was self-employed but working for Bracewell Construction Limited and suffered an injury to his back "lifting at work when I felt a sudden sharp pain in my lower back." The doctor's diagnosis was L4-5 strain. The initial treatment was a course of physiotherapy. It subsequently transpired as a result of X-rays that the appellant had suffered a prolapsed disc at the L4-5 level with an associated compression of the thecal sac. The appellant has subsequently had an operation to his back but remains incapacitated and in receipt of weekly compensation. There is no argument as to the fact of his present situation. Appellant's Work History From March 1992 to May 1994 Considerable evidence was given at the review hearing by and on behalf of the appellant and I find the facts to be as follows. After sustaining his back injury whilst working for Fosters Construction Limited on the 19th of March 1992 the appellant received earnings related compensation for a period of six weeks. 4 At the conclusion of the six week period which had been certified for the appellant returned to work at Fosters Construction Limited and continued there for a further two weeks before he was laid off. On finishing at Fosters Construction Limited he obtained employment with Scocia Construction Limited which was building a new court house at Hamilton. He said the work was heavy and involved construction of large concrete shear walls. He stated that he worked there for six weeks before he said he had to stop because of having back problems. A few weeks after finishing at Scocia Construction he obtained a position as a carpenter with Viking Shop Fitters. He took this job he says because he thought it would not be as physically demanding work as he had done previously. In fact he said it was as demanding as it involved some heavy lifting and working long hours. He stayed in this employment for two months before he again said his back was going into spasm and he had to stop. He resumed work again in early 1993 working as a carpenter building chalets for Waiheke Island Resort. Because of his experience he was given the position of leading hand and supervised the construction of the project. After eight weeks into this contract he said he was lifting a small shower unit and his back went into spasm. He was off work for approximately two weeks and then returned to work and in his words worked for another few weeks before leaving because of his ongoing back problems. After a period of two to three months off work he obtained employment as a carpenter building cabinets for the new Pendragon Mall on Waiheke Island. He stated that this work was light in comparison with the type of work that he had been doing over the past three years and was much easier to handle. He continued working in this employment for approximately four months. He said he had to take days off work from time to time because of back pain. 5 In January 1994 he took a position as a building contractor with Bracewell Construction Limited renovating office blocks into apartments. He said he worked for Bracewell for six to eight weeks until one day after morning tea he bent over to lift and his back went out again. That day was the 6th of May 1994 and his evidence is that he has not worked again since that day. Appellant's Claims History Following the injury to his back on the 19th of March 1992 the appellant attended Hamilton Accident and Medical on the 22nd of March where his certificate was stated to be "sprained back". He was certified unfit for work for four weeks initially and prescribed physio. A further certification of two weeks unfit for work was made on the 24th of May 1992 and further physio treatment was prescribed. The only medical attention the appellant received at this time was from the Accident and Medical Centre in Hamilton and a physiotherapist. No X- rays were taken and there appears to be no other medical information regarding this accident save for that brief statement contained in the initial claim form and the associated certificates as to unfitness for work. A further claim was lodged on the 4th of March 1994 in respect of an injury said to have occurred on the 2nd of March 1994 and stated as being "fishing on the rocks while casting I pulled a muscle in my neck." The diagnosis by the doctor he consulted, Dr Karetai, was neck strain. Again physiotherapy was prescribed. The Corporation's records show that the only payments made in relation to this injury were for physio treatment. Subsequently Dr Karetai was asked about his treatment of the appellant and he did advise that he did see the appellant in March 1993 in relation to acute lumbar back strain. He stated that although there was some improvement he continued to have intermittent pain, sciatica and restricted movement. He further stated: 6 "He injured his neck in March 94 in an incident which caused a flare up of his back symptoms. Because of this he was unable to work for several weeks. I have not examined him since that consultation in March 1994." The final claim was that in relation to the injury of the 6th of May 1994 whilst working for Bracewell Construction Limited. Medical Evidence Following his visit to the Ponsonby A & E Clinic for his back injury of the 6th of May 1994, he was referred by that clinic to Peter Robertson, orthopaedic and spinal surgeon. To Mr Robertson he stated that he had had problems with his back for about four years. He stated that he had bouts of back pain lasting for some time but settling. He stated that the current bout of back pain had been lasting for three months and initially had occurred after he lifted a toolbox in the course of his work as a builder. He presented with back pain with some radiation to the left buttock. He advised Mr Robertson that he had had an extensive range of therapy including chiropractic manipulation, osteopathic treatment, acupuncture and a wide range of medication. It was Mr Robertson's opinion that the appellant's back pain was entirely consistent with discogenic origin. Mr Robertson prescribed analgesics and anti- inflammatories. He also advised that he should move on to a rehabilitative exercise programme to improve flexibility and trunk muscle strength. He was also referred for further physiotherapy. On 30th September 1994 Colin Hooker, orthopaedic surgeon, reported to the Corporation on his examination of the appellant. To Mr Hooker the appellant described developing a sudden pain in his lower back on the 6th of May 1994 when he stooped down to pick up an apron during the course of his work as a carpenter. To Mr Hooker the appellant advised that despite the course of 7 treatment that Mr Robertson had prescribed, his pain was worsening and the physiotherapy treatment had been stopped. It is significant to note that in his discussion with Mr Hooker, as he has reported it, the appellant said that he experienced back pain about four years ago. Since that time he has been aware of a sense of low back stiffness although not of pain and up until the event of May in this year he was not off work on the basis of the symptoms. Mr Hooker's examination determined a localised lumbo-sacral tenderness but no deformity and no muscle spasm. The X-rays that he had obtained show some evidence of minor disc degenerative change at the L4-5 level and possible posterior joint degenerative change at the lumbo-sacral level. It was Mr Hooker's opinion that the back pain was on the basis of lumbar disc and posterior joint degenerative change, being precipitated by normal bodily movement. The appellant was next examined by Michael Barnes, orthopaedic surgeon, in December 1994. At the time of his examination Mr Barnes had the reports of Mr Robertson and Mr Hooker. Mr Barnes observed that since he had been examined by Mr Robertson and Mr Hooker the appellant had now developed right-sided sciatica. It was proposed that he have an epidural steroid injection but did not have this as the symptoms resolved spontaneously after approximately 10 days. Mr Barnes ordered a CT scan and this showed quite a large central and right- sided L4-4 disc prolapse with evidence of ongoing nerve root compression. Mr Barnes considered that surgery was a reasonable option. The appellant did undergo surgery on the 5th of October 1995 but still remains incapacitated. 8 Subsequent to the review hearing and decision the appellant has obtained three reports from Mr R H Weeks, orthopaedic surgeon. In his first report dated 23rd October 1997, he assessed the appellant had a 20% permanent loss of impairment of bodily function but did not offer any opinion as to the genesis of his problem save to say that it was notcaused by a leg length discrepancy which the appellant had but rather it was caused by "a well attested history of personal injury by accident followed by several other re-injuries during the course of employment." In a follow up report dated 28 January 1997 Mr Weeks stated: "This letter is to confirm that in my opinion his whole problem as detailed in that report (his report of 23/10/97) stems from the personal injury by accident sustained in early February 1992 and described in detail in the first part of the report. A severe mechanical stress of this sort is certainly more than merely sufficient to cause disc damage and a history of initial settling but continuing vulnerability and even frank and irreducible prolapse is quite typical. It should be noted in particular that, as laid out in the history given in the report, the back never really settled completely and he had to try to work round the problem. I have no doubt that the injury sustained in February 1992 was the prime cause from which the disc damage, subsequent frank prolapse and need for surgery stemmed." In a third report dated 10th February 1998 Mr Weeks stated: "It is perfectly possible for the prolapse to have been in existence, but not apparent in the Xray of 5th September 1994 as plain Xray does not show damage to soft tissues of this sort." Mr Weeks went on to say that he considered that the sort of injury that the appellant had in 1992 was one which was likely to cause disc damage but that because it was a soft tissue injury it did not show up on X-rays. 9 Appellant's Submissions It is against the foregoing factual background that counsel for the appellant submits that the appellant has in fact been permanently and continuously incapacitated, within the meaning ascribed to that word under the Act, and that therefore an assessment of the quantum of his weekly compensation should be made using the income he earnt in the 52 weeks preceding 19th of March 1992. Counsel submits that the appellant was by reason of his injury unable to engage again in the type of employment he had at the time of his accident. She submits that the test for incapacity is determined by a person's inability, because of their personal injury, to engage in their former employment and that the appellant fulfils that test as from the accident of 19 March 1992. Counsel submits that despite the fact of the appellant continuing to work after the date of that injury his employment from then on was progressively lighter in nature and was not of the same type or intensity as it had been at the time of his accident. She further submits that the whole of the evidence, especially having regard to Mr Weeks' opinion, establishes the fact of incapacity from a medical standpoint from that time. Counsel for the respondent submits that the issue before the court is one of fact and that in the absence of contemporaneous medical evidence, the court must be satisfied on the totality of the evidence that the appellant has been continuously incapacitated since 19th March 1992. Counsel submits that because of the fact that the appellant has been able to engage in his pre-injury employment since March 1992, there can be no continuous incapacity. Counsel submits that the medical evidence falls far short of demonstrating an incapacity for that two year period 10 between March 1992 and May 1994. Counsel further submits that Mr Weeks' reports do not demonstrate that the appellant has been continuously incapacitated since March 1992. At most the reports indicate that the appellant was vulnerable to re-injury and that this is in fact what happened. Relevant Statutory Provisions This appeal concerns the test of incapacity contained in s.37 (as originally enacted) or s.37A(2) (as it currently stands). This provision reads as follows: "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 timebeing unable to engage in employment in which the person was engaged when the personal injury occurred." Decision The onus of proof is on the appellant to establish on the balance of probabilities that he has been continuously incapacitated from 19th March 1992 down to 5th May 1994. As has been noted there is no contemporary medical evidence to assist the court with a determination of that question. At the time the appellant was off work as a consequence of the March 1992 injury, and in respect of which he was receiving weekly compensation, he did not seek to assert any permanent incapacity. The extent of the medical evidence as to incapacity at that time was for six weeks. It is to be noted that there was an initial four week period certified for and then subsequently he was re-examined by his doctor and a further two weeks only certified for. This court is entitled to assume 11 that the plain fact of the matter was that thereafter there was no medical basis for the doctor to further certify. In addition he did return to work, the precise same employment that he was engaged in before the injury. The evidence is that over the next two years the appellant had a number of jobs which were of the same type of work as he had been employed in with Fosters Construction. In his own evidence he described those periods of work as being demanding and on some occasions they caused a re-occurrence of his back problem resulting in further time off work. Even given that the injury of March 1992 was the injury from which all subsequent problems flowed, this does not of itself establish incapacity back to the time of that injury. Mr Weeks talks of "continued vulnerability" as a consequence of the initial disc damage. His history as given to the Review Officer and to the various orthopaedic specialists with whom he consulted seems to confirm re-occurrences of his back injury. However the fact is that it was not until the further injury of May 1994 that the particular facets of his back as then presented were established. There is no evidence that that state of affairs occurred from the injury of March 1992. The empirical evidence is that he did return to work and was able to work for considerable periods of time. This was something he was not physically able to do as a consequence of the injury of 5th May 1994. I am not aware of any previous decisions of this court where a claimant has in fact returned to work following personal injury and has successfully contended that despite returning to work he was nevertheless incapacitated. 12 For the avoidance of doubt I find as a fact, as did the Review Officer, that this appellant did return and was physically able to return to the form of employment that he was engaged in prior to the date of his injury. The evidence in that regard is overwhelming. Furthermore there is no medical evidence which would establish that the actions of the appellant in returning to work were foolhardy and flying in the face of medical opinion that he was "incapacitated". The medical opinion and advice to him during this period was simply to have physiotherapy and some painkilling medication but certainly not to cease work and make a claim for compensation. In that regard I note that the appellant was aware of the compensation to which he may be entitled. He made claims for treatment for injuries unrelated to his back injury during this period we are concerned with. He must therefore be taken to have known that if indeed the facts were in his favour he could have made his claim at that time for any incapacity. I have been referred to the decision of Eason v ARCIC (decision 28/94) where his Honour Judge Middleton ruled that the mere fact that a person continues to suffer some discomfort and pain on returning to work does not entitle that person to subsequently contend that he was incapacitated. In the present case the appellant appears to have had periods when he was able to work comparatively pain free but then would re-injure himself in the course of some particular movement. He would then require a period of rest and treatment and then again able to resume his former employment. Accordingly then, I concur with the Review Officer's finding that there is insufficient evidence to conclude that the appellant could be said to have been incapacitated continuously from March 1992 down to May 1994. I find that the appellant has fallen well short of establishing his claim on the balance of probabilities and this appeal is therefore dismissed. 13 DATED at WELLINGTON this 13 day of - March 1998 M J Beattie District Court Judge Hughes.doc KD