McCardle v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 127 /96 HELD AT HAMILTON 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 RODNEY ROY DONALD McCARDLE Appellant (Appeal No. DCA 24/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 23rd day of August 1996 APPEARANCES Appellant in person P A McBride for respondent DECISION OF JUDGE D A ONGLEY The issue in this appeal concerned calculation of weekly earnings as an employee under s 40 of the Accident Rehabilitation and Compensation Insurance Act 1992. The calculation hinged on the commencement of incapacity under s 37 of the Act. Section 37 states: 37. Test of incapacity - For the purposes of this Part of this Act, whether or not a person to whom this Act applies is incapacitated shall be determined by 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 or, where any of sections 44, 45, 46, or 49 of this Act - 2 - applies, any other employment for which the person is qualified by reason of experience, education, or training, or any combination of them. The appellant injured his back while lifting a gear box in the course of his employment as a motor mechanic on 14th October 1992. His claim for compensation for the back injury was accepted and he was referred for physiotherapy but did not take time off work until 14th July 1993. Even then he made no claim for earnings- related compensation but, in his words, he took time out from work until he commenced Kiwifruit picking for various employers in the season beginning in April 1994. His claim for compensation in relation to the arm was made in April 1995. At first there was some doubt whether it was an injury relating to the 1992 accident, but that was resolved. His claim was supported by a letter from Dr Gudex at Tauranga who provided a short note: "Rodney consulted me on 4 May regarding loss of earnings due to his left elbow injury . After discussing this with Rodney, I feel that it is entirely appropriate for him to claim a pre-injury level of earnings, in view of the fact that subsequent to the accident he has been unable to perform some duties, hence reducing his ability to earn." In April 1995 the appellant applied for weekly compensation was assessed for relevant earnings for a 12 month period to 15th March 1995 during which he had been doing kiwifruit picking and other short duration employment. His earnings in that 12 month period were very much less than his earnings for the 12 months before the date of the accident. The appellant considered that his ability to work had been hampered by his injuries since the time of the accident, not just from March 1995, and he considered the assessment unfair because it took no account of his pre-accident level of earnings. The review officer found that he had not produced any evidence to show that he was incapacitated prior to 15 March 1995 and confirmed the Corporation's decision. I consider this appeal should be allowed because there is a question of giving appropriate weight to the evidence of the appellant himself which appears to be reasonably cogent. The review officer did not make specific findings but did recite the evidence that the appellant had given, that is to say that he attended a physiotherapist after the accident for his back and his elbow, but did not stop working. He eventually left his job at Bay City Motors where he had been doing light duties off the workshop floor, and he referred to a change in management following which he had been asked to return to the workshop floor but did not want to do so because he would be unable to do the job. He did not go to a doctor until seeing Dr Gudex on 5th April 1995. The difficulty for the Corporation in dealing with retrospective medical evidence and a subjective history by an appellant who has not claimed entitlements at the right time is well known. There is no limitation period affecting the appellant's case and he is entitled to make his claim, but can expect that his evidence will be scrutinised with particular care in view of the unusual circumstance that he had, according to his account, suffered a loss of income due to incapacity for a considerable period of time without bothering to make a claim for - 3- earnings-related compensation. If he had made a claim the Corporation could have obtained medical information and assessed it. The Corporation is naturally prejudiced . . by the difficulty of having to weigh much less reliable evidence in order to accept or reject the appellant's claim. While recognising the difficulty for the Corporation, it has to be accepted that claimants will not all conform to the same mould and in appropriate cases the credibility of a late claim needs to be recognised. This may well be one of those cases. The Court is not in a position to weigh the matter fairly in the absence of cogent medical information. I consider that this is not a case where the appeal should be dismissed because the evidence is insufficient, but that it is a case where the Corporation's decision should be revoked in order to allow the appellant's case to be presented fairly. The history which he presents is that he was incapacitated from the day of the accident. He says that both the back and arm injuries were causing trouble. Without embarking on a careful analysis of s 37, it is arguable that both injuries together comprised "his personal injury" and that by reason of his personal injury he was not reasonably able to engage in his occupation of a motor mechanic. Working as a motor mechanic required lifting of heavy gear boxes and motors which the appellant says cannot be done with any back or arm weakness. He says that the only reason he was able to continue was that he was given light duties. Once it became necessary for him to return to the floor, he knew that he could not resume heavy work and so he resigned. He had been doing physiotherapy and he was optimistic that after a period of rest his arm would recover. He seems to have seen Dr Wijetunga at Waihi Beach on 25 February 1993 so there is some independent indication that his arm continued to trouble him. The Corporation's complaints investigator referred Dr Wijetunga's medical note to the Assistant Corporate Medical Adviser who considered that if there had been any restriction of movement resulting from pain, that the doctor would have arranged referral. He thought that the reference to the elbow was an after-thought. Of course the appellant's concern was not simply with limitation of movement but with the ability to do the heavy work involved in a motor mechanic's workshop. Eventually he underwent an operation and he resumed full-time employment 6 weeks later, in February 1996. His claim for earnings-related compensation is directed at a back- dated period during 1994 and at the period from making the claim in April 1995 until he recommenced full-time employment. The claim for back-dated compensation will involve more difficulty than the second period of the claim. There has never been a specialist's report containing a full history and assessment of reliability of the appellant's account in relation to the available medical material. The appellant needs to have the benefit of such a specialist opinion. He should obtain evidence from the physiotherapist about the appearance of the injury and the kind of physiotherapy that he undertook. The appellant will have to provide a detailed personal history for good measure. It can be compiled from a number of his letters on the file, but it would be fair to expect from him a full chronology of events. It would also be helpful for the appellant to provide that to the medical specialist as a basis for interview in order to save time. It is the kind of case where there is an onus on the - 4- claimant to put the information forward in order for the Corporation to deal responsibly with the claim. For the reasons which I have expressed the Corporation's current decision is revoked and the appellant will be entitled to further consideration of his claim for the date of his incapacity to be fixed at 14th October 1992. DATED at WELLINGTON this 24thday of October 1996 D A Ongley District Court Judge