SF v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT BLENHEIM Decision No. 54/97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN SF of Blenheim Appellant (Appeal No. DCA 262/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 26th day of March 1997 APPEARANCES B A Fletcher for the appellant D K Tui for respondent DECISION OF JUDGE A W MIDDLETON There will be an order that no details which would identify the appellant are to be published. The issue is whether the appellant is entitled to weekly compensation under the Accident Rehabilitation and Compensation Insurance Act 1992 as a result of personal injury arising out of sexual abuse suffered in her childhood. It is acknowledged that in addition to this issue the appellant also has a claim with the respondent relating to physical injuries suffered by her on 22 December 1992 as a consequence of an assault. 2 The claim in relation to sexual abuse was lodged with the respondent on 21 June 1994. The claim form indicated that the appellant claimed to have been "sexually, mentally, physically abused as child 18 months to 5 years - sustained rape 1968". The claim for cover indicated that the appellant had been referred by Dr R Kydd. As the respondent was already aware that the appellant had ceased work with [an employer] on March 1993 because of her parallel claim in relation to the assault, her application for weekly compensation arising out of the claim for sexual abuse was declined because the appellant was not an earner at the date she lodged her claim for cover in June 1994. The appellant applied for a review of that decision. After the review officer had been appointed the appellant was given an opportunity to obtain a report from Dr Kydd but he was unable to supply any information which would assist the hearing. A second review officer was appointed and the appellant gave evidence at the hearing. However, the review officer considered that the appellant should be examined by a psychiatrist with the special request that he advise whether her mental trauma was a consequence of her sexual abuse or the physical abuse suffered on 22 December 1992. The appellant was examined by Dr A B Marks, a consultant psychiatrist, who provided a report on 14 May 1996 in which his conclusions were: "1 This has been a complicated assessment and despite the quantity of my work I will not be adamant in the conclusions that follow. They are strong impressions based upon interviews and reviews of other material. The two most important causes of uncertainty are the discrepancy between the medical records and [the appellant's] account of her hospital admissions during her teens and secondly an absence of corroborative information about her adjustment during the 1970's and early 80's. Information from the former Child Welfare Department might supply greater detail about [the appellant] during her early and mid teens. Contact with her family and former husband might provide information about the 1970's. I have been reluctant to involve her family in what I understand to be conflict surrounding her claim and I am not finally sure how relevant the earlier history is to be conclusions that are at least reasonably clear as follows. 2 The impression I have from my interviews with [the appellant] and reviewing her medical records is that she suffers from Personality Disorder and the degree of this is at least moderately severe. The character of the Disorder is probably that of Borderline Personality Disorder. The Personality Disorder is characterized by marked impairment of interpersonal functioning, depression, anxiety, panic symptoms, insomnia, substance abuse and intense emotional upheaval. My concern which makes this conclusion a strong impression rather than a firm conclusion is that [the appellant] may have had a period of satisfactory adjustment during the 1970's and early 80's. This would suggest that her 3 Personality Disorder is not severe or that the diagnosis is wrong. My impression however is that she had greater difficulty during that period than I have been able to define in gathering the history in this report. 3. The causes of [the appellant's] difficulties over recent years and of her Personality Disorder must be multiple. They must also reflect the interaction between [the appellant], her circumstances and her reactions. Within all of this however are several themes: 3.1 I note the family history of psychiatric disorder in her father and brother. This suggests that there may be a genetic predisposition to psychiatric disorder. 3.2 From basic principles it is very likely that at least some of [the appellant's] temperament and Personality Disorder arise from inborn temperament. 3.3 I have the strong impression that aspects of her developmental experiences would have contributed in a negative way to her personality development and so had made a contribution to her subsequent personal difficulties. 3.4 Her substance abuse of sedatives and alcohol was severe in her later teens and since at least 1988 has been severe for short and longer periods. The effect of substance abuse upon her personality, adjustment and functioning will have been a destructive one. 3.5 For a period of 15 months until the end of 1993 [the appellant] was subjected to 'stalking' from her ex partner. This has almost certainly been an intensely traumatic and troublesome experience for her and it is noteworthy that she perceived that she was in bodily danger or even danger of death. I consider it very likely that this contributed to at least a significant portion of the difficulties that have followed. It is also likely to have triggered the emergence of consequences of earlier abuse - particularly the sexual abuse from her stepfather. It has probably made a very significant contribution to her inability to work since 1993. 3.6 Amongst these other factors it is impossible to be definite about how much contribution to recent difficulties has come from the sexual abuse by [the appellant's] stepfather. It is noteworthy however that [the appellant] describes being subjected to repeated intercourse and that this was at the age of 10 or 11 years. She describes herself as being forced to submit and terms the experience as repeated rape. On a theoretical basis alone this is likely to have had severe consequences for her in the years that followed. I note Dr Laurie Jo Moore's definition in 1994 that [the appellant] was suffering from Complex Post Traumatic Stress Disorder. On balance I therefore consider that the sexual abuse has been responsible to at least a very significant extent for [the appellant's] adjustment over the last 3 years and for her inability to work. 4 4. Specifically answering the questions as set out in the letter from Accident Rehabilitation & Compensation Insurance Corporation dated 7th March 1996 are the following conclusions: 4.1 Was [the appellant] fully functioning prior to her terminating her employment. No. In 1988 and 89 she was experiencing both periods of serious substance abuse and disruptions of mood and behaviour. She acknowledges that she required high doses of sedatives on at least one or two occasions prior to 1993 and I have the strong impression that her personal difficulties may have been greater than I have been able to define in the history obtained to date 4.2 Did her sexual abuse, as per her claim for cover, have a direct impact on her inability to continue working. As outlined in 3.5 I consider that this is so. 4.3 What is [the appellant's] level of functioning at this time. I have not seen [the appellant] since 14 December 1995. 4.4 What would you see as her prognosis. I have the strong impression that [the appellant's] prognosis is likely to be unsatisfactory and that she will continue to be troubled at times by substance abuse and the consequence of marked impairment of personality functioning. 4.5 What changes should [the appellant] undertake to be rehabilitated back into the workforce. This involves a complex range of emotional and personality development or recovery. 4.6 Any other issues that may be relevant. I hope this work is of assistance in sorting out [the appellant's] complex difficulties and in what I understand have been her complex dealings with the Corporation." In evidence before the review officer the appellant stated that she had suffered a serious assault by her partner on 22 December 1992 as a result of which, and because of a background of similar incidents, the Police indicated to the appellant that they could not guarantee her protection and that in her own interests she should leave the city in which she was then living. As a result she gave up her job and moved to another area in New Zealand. She explained to the review officer that because of the fears for her safety she could no longer live in the city in which she was living and for that reason moved to another city. She was then referred by her previous health provider for treatment in the new area and it was during assessments and consultations in relation to the physical assaults that the issue of sexual abuse in 5 childhood arose. The appellant explained to the review officer that she could not physically stay in her previous position and for that reason had left. In answer to the question put by the review officer "would you have been able to cope with the work if it were only for the physical effects of the assault or was it inextricably linked with mental consequences as well at that stage". The appellant's answer was "yes it was" She then stated "I was petrified I was going to be killed". The appellant then explained to the review officer "I believe that the professionals who made a decision to physically remove me to another Area Health Board and the cost that that incurred, the cross boundary flow would not have made that funding decision unless they felt there was a physical danger. No mental health manager picks up the bill of my accommodation at a nurses home for the length I was there unless there was a good justifiable funding reason to have me out of [the place I was previously living]. In this case it was physical safety. Whilst they dealt with it, it was predominantly physical safety". In answer to a further question by the review officer as to whether when she stopped working it was as a result of the sexual abuse or the consequence of the physical abuse, the appellant explained that she felt that she could separate those consequences. The appellant went on to answer further questions from the review officer and in answer to the question that if a job had been available in the new location would she have taken it, she replied "no I couldn't have because when you get unsafe as I was" to which the review officer asked "were you in hiding?" to which the appellant replied "yes I was". The review officer then asked the question "So what are you saying you couldn't appear because you were in fear of your life", to which the appellant explained that she had had problems for some 4 months and felt physically unsafe. In answer to the question as to when she first raised the question of sexual abuse the appellant explained that it was when she moved to the new area in April/May 1993. The file disclosed a report from Dr Kydd who had advised the respondent on 11 August 1989 that he had interviewed the appellant on some four occasions since 12 January 1989. He then said: "Her history is that she was quite well until Easter of 1988 when her mother suddenly advised her that she had been in contact with the Department of Social Welfare about [the appellant's] first child, a son who was adopted away when [the appellant] was aged about 17 - 18. Her mother and Social Welfare had reportedly organised for the son to come and make contact with the family without advising [the appellant]. [The appellant] was most upset at this turn of events, as it referred to a part of her life she had thought was behind her and the announcement was made in front of her daughters who were unaware they had a sibling. That night [the appellant] took an overdose of pills, not really wanting to commit suicide, but rather to try to forget everything. Subsequently the anger and pain she felt as a result of this announcement, led her to begin abusing prescription drugs. However, she soon realised that this was an inappropriate response and around May of 1988 had herself admitted to a detoxification unit in Wellington. Her daughters were apparently also most upset by the news and the relations between [the appellant] and her children have not been good." 6 In a referral certificate dated 21 June 1993 Dr [in the new location] indicated that the appellant was diagnosed as having "severe stress resulting from physical assaults. Mental stress resulted in client overdosing requiring detox". The doctor indicated that the current therapy was "counselling and medical detox". A similar referral certificate from the same doctor on 21 June 1993 in support of an application for Social Security Sickness Benefit stated that the appellant was suffering from "excessive drug use due to stress related physical assaults". A subsequent report from a social worker in the new location stated on 20 August 1993 that the appellant had been undergoing counselling as a result of which "the present problems was of 'flashbacks' and nightmares of childhood sexual and physical abuse which were, apparently, triggered by a result physical assault". In a report dated 19 October 1994 a psychiatric consultant at Hutt Valley Hospital advised the appellant's then solicitor: "Despite these adverse circumstances she went on to marry, raise children and become skilled and efficient in her work. She sought psychiatric help in 1988 with Dr Robert Kydd in Auckland and remained under his care until the more recent past. Over the last year [the appellant] was treated in 5 different hospitals: Auckland, Ashburn-Hall, Taranaki, Rotorua and New Plymouth. From what I can determine, her treating professionals decided that she was suffering from Multiple Personality Disorder and made an extensive effort to bring into her conscious awareness all the traumatic memories of her past in an attempt to help her integrate these fragmented parts. This treatment, unfortunately, left [the appellant] highly symptomatic and so dysfunctional that she could not work. During this period she attempted suicide on two occassions (sic). The second time she had no conscious memory of her actions and this level of dissociative behaviour was truly terrifying to her." A subsequent report from the same doctor on 9 December 1994 in support of an application for admission to Ashburn Hall stated: "[ The appellant] has been physically and sexually abused while at the hospital and justifiably has extreme mistrust of hospital care. She currently believes the treatment she received last year was adverse and had left her completely dysfunctional". The review officer found: "Her unequivocal testimony is that she stopped working because of the fact that she had to go into hiding for fear of further assault. There is no evidence whatsoever to indicate that she stopped working due to the consequences of the childhood sexual abuse. It was while she was in hiding in Taranaki that she received treatment from the trauma arising from the physical abuse, and that is what led to her being dysfunctional. She first received treatment for the sexual abuse in or around June 1993 ..... whereas she stopped work on 12 March 1993. 7 Her incapacity as a result of nervous shock therefore came about after she had stopped working." The review officer held that on the basis of Dr Marks' report, the appellant was then unable to engage in employment in which she had been engaged prior to ceasing work. He was not satisfied that she was an earner immediately before the commencement of the incapacity and accordingly under s.40 she was not entitled to weekly compensation in regard to the sexual abuse scheme. The appellant appealed against that decision. Mr Fletcher submitted that the appellant's incapacity arose at or before the time she gave up her employment in March 1993 and that she is therefore entitled to a payment of weekly earnings. He submitted that while the review officer found that there was no evidence that sexual abuse was the reason for the appellant giving up work in March 1993, that may be relevant for the purposes of s.63(3) which provides that in respect of a sensitive claim the personal injury is deemed to have first been suffered on the date on which the appellant first received treatment for that personal injury. He submitted that that applies only for the purposes of that section which relates to the time limits for making claims and is not therefore relevant to this appellant's claim. He submitted that the test under s.40 is not whether or not the appellant gave up work because of the injury the subject matter of the claim, but whether or not she was an earner immediately preceding the period of incapacity. He submitted that by its very nature sexual abuse is a difficult subject to raise and is likely to be hidden for some years. He submitted that the appellant had received some counselling in November and December in 1992 and a letter from the counselling service involved which was provided after the appeal hearing simply confirms some counselling between 18 November 1992 to 9 December 1992. Mr Fletcher submitted that for this reason the appellant's contention that the issue had begun to well up at that time confirms his submission that it was the effects of that problem which caused her inability to work. Mr Tui submitted that the only issue before me is whether the sexual abuse was the cause of the appellant's physical incapacity and in no way relates to counselling following the effects of the assault. He submitted that on the evidence the issue of sexual abuse did not arise until some months after the appellant had ceased work and that the reason for her ceasing work was for her own safety following the assaults by her partner. He submitted that while Dr Marks is now able to state that the appellant was incapacitated as a result of the sexual abuse at a date subsequent to her ceasing employment there is also the issue that it was the quality of her treatment after March 1993 which made her dysfunctional as was disclosed in the reports of 19 October 1994 and 9 December 1994 to which I have already referred. He submitted that at the time the appellant became dysfunctional due to the combined effects of the sexual abuse and treatment the appellant was no longer in employment and was therefore not an earner for the purpose of the Act. The relevant law is s.37, s.39(1) and s.40(1) which state respectively: 8 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 applies, any other employment for which the person is qualified by reason of experience, education or training, or any combination of them. 39. Compensation for loss of earnings payable to earners for incapacity generally - (1) The weekly compensation for loss of earnings payable to an earner who is incapacitated as a result of personal injury in respect of any period to which section 38 of this Act does not apply is 80 percent of the earner's weekly earnings . 40. Calculation of weekly earnings whether earner had earnings solely as an employee during the 12 months before commencement of incapacity - (1) This section applies only to earners who are earners immediately before the commencement of the incapacity and who, during the 12 months immediately preceding the commencement of the period of incapacity, had earnings as an employee and who did not also have earnings other than as an employee." It is clear from the evidence that the appellant was an earner until she ceased her job and moved to another city on 12 March 1993. It was not until some months later during the course of counselling for the effects of the assaults which led to her moving cities that the question of sexual abuse arose and this appears to have been aggravated by the nature of the treatment which followed. The appellant in her evidence to the review officer stated that the reason for changing cities was the fear of further physical abuse and the acknowledgement by the local Police that they were unable to provide her with protection and advised the move for her own safety. There was no suggestion at that time of the issue of a dysfunctional problem as a result of sexual abuse. There is no evidence that at that time, had it not been for the assault, the appellant would not have continued in her employment. The issue as I see it is that submitted by Mr Tui was the appellant at the time the appellant ceased her employment in March 1993 incapacitated as a result of the sexual abuse? While Mr Fletcher submitted that issues of this nature are often suppressed and do not come to the surface until some time later there was evidence that the appellant had been receiving some form of counselling in November and December 1992. However, apart from the bland assertion that she was receiving counselling, there is no explanation as to whether this was in relation to the physical assaults which she had suffered or was for sexual abuse. However, inspite of that she certainly continued to work until March 1993. I also accept that following treatment in hospital which appears to have given rise to further abuse, Dr Marks considered that sexual abuse was a significant factor affecting her inability to work at the time he examined her. I consider that the evidence demonstrates that the appellant gave up work for the reason that she feared for her safety and for no other reason. The review officer was therefore correct in holding that the appellant was not an earner immediately before the commencement of her incapacity and that therefore she has no entitlement to weekly earnings. The appeal is dismissed. DATED at WELLINGTON this 15th day of April 1997 A W Middleton District Court Judge dc26292.doc(rd)