Ngaruhe v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. $ 3 195 HELD AT AUCKLAND 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 TAUPA NGARUHE 38/ 94 / 0069. Appellant (Appeal No. DCA 163/94) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 5th day of July 1995 APPEARANCES Mr M D Edwards for appellant Ms J L Johnston for respondent DECISION OF JUDGE D A ONGLEY The appellant suffered incapacity from a combination of degenerative factors and personal injury by accident. This appeal concerned the question whether incapacity had ceased once the symptoms of the accidental injury were no longer evident. The appellant fell from a building on 26 September 1988 when he was engaged in construction work. He suffered damage to his right shoulder and neck. He tried to return to work slowly and by 20 February 1989 Dr Colquhoun certified that he had improved but was restricted to limited lifting. On 27 March 1989 Dr Jackson certified that the appellant was still unfit for work because of low back syndrome and right arm injury. Apparently he had suffered aggravation of his back problem at the end of February. On 30 March 1989 Dr Jackson wrote to the appellant: "I have now seen your x-rays which were taken at Hamilton. X-rays do show that there are some changes which would normally be associated with some - 2 disc damage in your spine. The changes being relatively widespread, but not of any great severity. These changes are not uncommon and whether they have been caused by injury or whether they have resulted from an old problem is unknown. I would suggest that you have a period of rest at home and then consult Dr Colquhoun who I will be writing to again, who should be able to arrange adequate treatment for you. I would be pleased to see you again at any stage on referral." On 17 April 1989 Dr Colquhoun reported that the appellant had obtained relief from his symptoms through manipulation and that the prognosis ought to be excellent but that it might not be that simple. He considered the appellant should be fit for work with restricted lifting but that he was suffering from anxiety. In May 1989 the appellant set out his own recent history referring to persistent symptoms relieved only slightly by physiotherapy and he referred to two further incidents which had occurred while he was trying to return to regular work. One was a lifting accident when he tore ligaments of his right arm and the other was a painful collapse of his right foot when jumping from a vehicle to the ground. Dr Dewes then certified him unfit for heavy work but by the end of June found him much improved. It should be noted that at that time the Corporation's client officer found the appellant motivated and very keen to work and there is no indication on the Corporation's file that the appellant was a malingerer. Dr Dewes furnished further certificates but on 1 October 1989 he wrote to the Corporation: "I have had cause to review this case, from injury allegedly sustained 26.8.88. I have spoken to Dr T. Palfi (Gisborne) and Dr D. Colquhoun (Te Aroha) both of whom attended him during earlier parts of his convalescence. Initially he presented with a sore shoulder to Dr Palfi, then with a sore neck to Dr Colquhoun. I attended him 17.5.89 when he said he had a sore back. In my opinion this man should not be on ACC and I will not be signing further C15's for compensation." Dr Dewes did not explain why he considered that the appellant should not be on ACC. Possibly he considered he had been inventing symptoms but that is at odds with the appellant's evident wish to return to work. The Corporation then obtained a report from Mr C H Hooker, Orthopaedic Surgeon. The report dated 1 December 1989 stated in part: In my opinion there is no objective evidence either clinically or radiologically that Mr Ngaruhe in the accident described occurring on 26 September 1988 with the further accident occurring some six months ago, sustained significant permanent physical or functional disability. I believe particularly in the former accident he aggravated pre-existing wide spread relatively minor disc and other degenerative changes in his spine. I suspect he subsequently became increasingly over weight and unfit in a muscular, physical sense and I believe that at this time the only management that is likely to assist Mr Ngaruhe in returning to his pre-accident state, is for him to find suitable light work which he could manage and through this light work associated with a progressive exercise and activity programme and with efforts at weight reduction, - 3. gradually increase his physical capabilities and ultimately, hopefully return to the type of work he was doing at the time of his accident. I do not believe that it would be appropriate at this time to attempt to assess Mr Ngaruhe's Section 78 entitlement." Predictably the appellant then saw another doctor. Dr Murphy furnished possibly four certificates of unfitness for work. In April 1990 the rehabilitation co-ordinator recorded that the appellant desired retraining. In July 1990 Dr Murphy certified him again fit for selected work. On 23 August 1990 Dr Hooker furnished a report for assessment of lump sum compensation in which he expressed his opinion: "I doubt whether Mr Ngaruhe will ever recover from his current complaint of back tiredness' to the point where he will be able to return to unrestricted heavy physical work such as he was apparently doing at the time of his accident on 26 September 1988 detailed in my previous report. I believe he will be capable however of a wide range of light work and light general activity and further, if he was able to find such suitable light work I believe as he became established in a more normal life and work pattern, his residual symptoms may well further subside. In view of the degree of lack of stiffness noted on examination at this time and the fact that Mr Ngaruhe in my opinion is unlikely to be fit again for unrestricted heavy physical work I believe it would be reasonable to settle his claim at this time under Section 78 of the Accident Compensation Act on the basis that he has a degree of permanent functional disability amounting to about 10% of total due to the personal injury by accident on 26 September 1988. A similar settlement under Section 19 of the Act would probably be appropriate." Since then the appellant has been certified fit for selected work and on occasions he has been certified unfit. There is no doubt that he has been trying to obtain work and in 1992 he eventually moved to Auckland where he found work as a driver. On 14 August 1993 he was dismissed from the Yellow Bus Company following incidents of negligence and a charge of failing to stop and ascertain. He was able to carry out his duties as a driver but he attributed his mistakes to stress caused by back pain. He had been to see the Corporation on 14 July 1993 and there is a note on the Corporation file that he had been advised about the need for a C15 form in the event of deterioration. Mr T D Mills, Orthopaedic Surgeon provided a C15 dated 21 September 1993 certifying unfitness because of back injury and on 11 October 1993 Dr Jansen certified that he was fit for selected work The Corporation then asked Mr Mills to report concerning the reason for the appellant's unfitness for work. He reported on 27 October 1993 from the notes of his examination on 21 September: "There was no tenderness about the low back and no clinical deformity. On forward flexion fingertips reached ankles and extension was unimpaired measuring 30. Straight leg raising was 90 on both sides and no abnormal neurological signs were noted in the legs. Xrays of the lumbo-sacral spine carried out at Takanini Care demonstrate significant degenerative changes in the low back over the L2/3, L3/4, L4/5 and L5/SI levels. No evidence of any changes consistent with previous bony trauma were noted. - 4 - I formed the opinion that Mr Ngaruhe required no orthopaedic surgical treatment . His incapacity is relatively minor but it would seem reasonable that he changes employment from that of a bus driver at this time. I have no access to any previous medical information in respect of Mr Ngaruhe's back injuries which led to his being off work for 4 years in Gisborne. Recent examination has failed to disclose any radiologic evidence of any bony injury which could have resulted from his fall in 1988. I formed the opinion that Mr Ngaruhe, although unfit for prolonged driving, was fit for suitable sedentary work which did not involve repetitive bending and lifting. He is fit for suitable selected work at this time. On 12 November 1993 Dr Jansen wrote: "Mr Mills has certified Mr Ngaruhe fit for selected duties and in need of rehabilitation. You will have copies of Mr Mills' letter showing that he has multi level degenerative disease in the lumbar spine. However as Mr Ngaruhe has also had a significant accident it is difficult to determine whether the pain is from osteoarthrosis or from his back injury. I have certified him as fit for light duties and in view of his previous assessment of a 10% permanent disability I believe it would be acceptable for him to undertake work not involving prolonged sitting or standing and without heavy lifting. I suggest that your rehabilitation staff are involved in an early stage to assist his return to work." On 9 December 1993 the Corporation issued a decision declining weekly compensation (incorrectly dated 9 November 1993). The letter stated that information on the appellant's files indicated that he resigned from the Yellow Bus Company and taking that into consideration it was considered that his termination of employment was voluntary and was derived from factors unrelated to the back injury. The Corporation did not spell out the statutory authority it invoked to end the appellant's entitlement to weekly compensation. In a decision of 24 June 1994 the Review Officer said that he was not persuaded, in the light of the medical evidence that Mr Ngaruhe's back condition is the result of the accident in 1988, or, if it is in part, that that is in any way the reason for his claimed difficulties bus driving. This appeal was initially deferred because there was a medical question, but after the legislative amendment to s 93 of the Act the Corporation sought a further report from Mr Mills and the appeal was set down for hearing. In that further report on 1 January 1995 Mr Mills said that the first question asked by the Corporation was: "1. Whether it is not by reason of his personal injury that Mr Ngaruhe is unable to engage in employment but because of widespread degenerative changes in his spine, and, although this pre-existing condition may have been aggravated by his personal injury, could the effect of the injury now be considered to be spent?" His answer to that was: "Reviewing the C14 form dated 27/9/88 and a C15 form completed by Dr T Palfi and C15 forms completed by Dr D Colquhoun dated 24/10/88 and - 5- 10/1 1/988, it would seem that Mr Ngaruhe was largely complaining of pain about the (R) shoulder and neck and that he did not identify complaints in respect of his low back until about six weeks from injury According to a letter written by Dr D Dewes dated October 1989 it would appear that Mr Ngaruhe had complained of a 'sore back' on 17/5/89. When examined by Mr C H Hooker in November 1989 Mr Ngaruhe complained of mid back and left sided low back pain with an ache radiating to the back of both legs. From information at my disposal it would appear that Mr Ngaruhe had not complained of low back symptoms for at least six weeks from injury. From this information it would appear that there was no relationship between Mr Ngaruhe's fall on 26/9/88 and his present complaint of low back pain and paraestheside in the legs.' In answer to a question "Is Mr Ngaruhe's current condition consistent with the personal injury he suffered?" Mr Mills said: "It would appear that Mr Ngaruhe made no complaints in respect of his low back for a period of at least six weeks from injury. It seems unlikely therefore that Mr Ngaruhe has suffered from any significant injury to the lumbo-sacral spine as a result of his fall from scaffolding on 26/9/88. Certainly Mr Ngaruhe's complaints at the time of my examination in September 1993 related to his low back and could well be explained by the diffuse disc degenerative changes which were present in the lumbosacral spine." Mr Edwards argued that the questions did not address the issues and that the appellant falls squarely within the test for incapacity in s 37 of the Act: 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. Mr Edwards argued that the question put to Mr Mills was wrong (he said absurd) because degenerative changes can have causative factors including injury or disease and that what should have been asked was whether there was an aggravation of a pre-existing condition (referred to by Mr Hooker in his report of 1 December 1989) and whether on the balance of probabilities the appellant was unfit for work as at the date of his dismissal because of that aggravation of a pre-existing condition. Mr Edwards submitted that if the appellant's incapacity in 1988 resulted from aggravation of a pre-existing condition by personal injury by accident then the question is whether that same incapacity existed in 1993. He submitted that the test for incapacity was satisfied from 1988 onwards by the fact that the effect of the accident on his pre-existing condition resulted in his being unable to work at the same occupation and it is applying a different test to ask now whether it is by reason of his personal injury that Mr Ngaruhe is unable to engage in employment or whether it is because of widespread degenerative changes in his spine. - 6- Ms Johnston submitted that the test in s 37 is that the appellant is no longer able to work as a contractor because of his injuries caused by falling and that the current medical evidence is that it is not those injuries that prevent his working but it is degenerative back disease. In other words the effect of the injuries has been spent and has no present connection with his being unable to work as a contractor. She submits that the Review Officer's conclusion is correct in that it is now a degenerative back condition, unrelated to the accident, that is preventing the appellant from engaging in his pre-accident employment. It is difficult to state the factual question correctly. The question whether the effect of the injury could be considered to be spent assumes that it is quite separable from degenerative disease and that it is possible, with clinical evidence, to assess the effects separately. Mr Mills understood that the appellant had not complained of low back pain following the injury and he said there was no relationship between the low back pain and the fall. But the Corporation had accepted for several years, in reliance on medical advice, that there had been accidental aggravation of a pre- existing back condition. Mr Mills introduced a new diagnosis, in answer to specific questions put to him His diagnosis rested on a history of reporting symptoms which would probably have been known to the doctors who furnished certificates or who gave opinions in 1989 and 1990. It would be unfair to decide the present questions on the basis of the views elicited from Mr Mills without further enquiry as to the reasons why Mr Hooker, Dr Colquhoun and Dr Jackson reached different conclusions. Certainly the answers have never been entirely clear, but it would be unfair for the consensus of medical judgment to be reversed on the basis of one opinion resting on historical data. An associated question that must be dealt with is whether the appellant stopped work for a reason connected with his back problems. Although the Review Officer dealt with the appellant's history at length he did not give reasons for his conclusion that the back problems were not in any way the reason for difficulties claimed by the appellant in bus driving. In the absence of reasons the issue must be open for reconsideration on appeal. The fact that the appellant was working as a bus driver, and had apparently done so for over a year, is evidence that he was capable of performing that kind of work, but the first question remains whether he was still incapacitated in terms of the Act, that is to say whether he was unable to engage in his pre-accident employment. The Corporation had accepted for several years that he was not and it is clear from the medical information that he had not significantly improved and still suffered from a debilitating back problem even though he was able to engage in selected employment. From that alone it would follow that his incapacity continued. For the reasons that I have stated I accept that it did. His period of employment as a bus driver is relevant evidence but it does not counterbalance the medical evidence that he was not getting any better. In reaching that conclusion I reject the respondent's argument because it rests on a clear distinction being drawn between back injury caused directly by the fall and disability caused by degenerative disease. The appellant may well have gained some advantage in compensation if he was in any case about to become incapacitated through his degenerative back condition before he suffered the fall. If he had not fallen he may have become incapacitated anyway and he would not have - 7- been entitled to compensation, but once he became incapacitated within the meaning of s 37 he was entitled to the benefits of the Act. Incapacity as it is defined in s 37 is indivisible. One cannot say that a person is unable to engage in the same employment because of contributory reasons attributable separately to the accidental injury and a pre-existing condition. If such a narrow construction is available it has never been applied. It follows that in a case such as the present there is no basis to find the incapacity has ceased unless there is an overall physical improvement. I have found that the circumstances of the appellant leaving his employment is not directly relevant to the question of his incapacity. The employment was not the same as the heavy manual employment that he undertook before the accident. Under the 1992 Act cessation of compensation for loss of earnings is regulated by ss 49 and 51 once the claimant has been assessed according to scales. No scales have yet been prescribed. Otherwise there is an obligation under s 64 of the Act to engage in the process of rehabilitation and the Corporation has powers under s 73(2) to decline payment of compensation on unreasonable refusal to comply with a requirement made under the Act. It is open to the Corporation to require the appellant to work so far as that is reasonable and in accordance with the Act. The appeal is allowed and the Corporation's decision of 9 December 1993 is set aside. The appellant will be entitled to costs of $650. DATED at WELLINGTON this 2 + day of July 1995 D A Ongley District Court Judge