Clarke v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 241 /97 HELD AT WELLINGTON 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 THERESIA MARY CLARKE Appellant (Appeal No. DCA 254/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 29th day of July 1997 APPEARANCES Sonja Cooper for appellant Fleur Paterson for respondent DECISION OF JUDGE D A ONGLEY This appeal concerns the fixing of relevant earnings under s 53 of the Accident Compensation Act 1982. The appeal is brought under the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant's claim for weekly compensation is governed by s 138(1), which preserves payment of weekly compensation as if it had been calculated under the 1992 Act. The effect of s 138(2) is that adjustments to calculations of relevant earnings is governed by s 53 of the Accident Compensation Act 1982 The appellant suffered a whiplash injury to her neck on 24 August 1990 when she was a passenger on a flight into Wellington Airport. The aircraft slipped off the taxi- way and became bogged down in grass. A medical certificate dated 6 September - 2- 1990 was provided to the Corporation but no further evidence of incapacity was given to the Corporation until a certificate by the appellant's general practitioner dated 6 March 1991. That certified her fit to work three days a week. The appellant had been employed as a senior auditor by the Residential Management Unit (RMU) of Department of Education. She was a highly qualified employee and was working five days a week, but in a job that was expected to terminate in early 1991. The appellant's employment history and her evidence before the review officer was sufficient to indicate that she had experience and qualifications that would have enabled her to continue indefinitely in full-time employment at the same general level as before her accident. The information which the Corporation received in March 1991 was as follows: 1. The certificate of 6 March noting her fitness for three working days per week only, to be reviewed after three weeks. 2. When the appellant took the certificate into the Corporation she said that she intended working part-time in her daughter's business as it would not cause too many problems - and she asked for some financial assistance in changing jobs. 3. Two further C15 medical certificates of 11 March and 13 March noting an aggravation of her injury which incapacitated her for a total of seven days. 4. A letter of 20 March from the General Manager of the RMU, stating that from 25 February 1991 the appellant reduced her hours to three days per week because of a reduced workload with the Unit and not because of her accident. 5. A short note from Dr Clark, the appellant's general practitioner, that the current effect of the accident was that the appellant had persistent neck pain resulting in difficulty working in a clerical or a manual occupation, and that she had deteriorated since the accident as is usual in whiplash injuries. Dr Clark said that with more relaxed and appropriate lifestyle and therapy her condition should improve. The Corporation immediately took the view that there was no evidence of partial incapacity prior to her working hours and her income being reduced on 25 February 1991. Therefore her relevant earnings should be taken as at 6 March 1991, that is to say her earnings at the reduced level at which they had been for a little over one week. That decision must be taken to have been made under s 53(9) of the Accident Compensation Act 1982. The relevant parts of s 53 are as follows: 53. Relevant Earnings (1) Subject to this Act, for the purpose of determining the amount of any earnings related compensation payable to an earner, or payable at any time to any dependant of such an earner, the amount of his relevant earnings shall be such amount as, in the opinion of the Corporation, would, at the time of the accident, fairly and reasonably represent his normal average weekly earnings, having regard to such information as the Corporation may obtain regarding his earnings before the time of the accident and his earnings at the time of the accident, and the period of his residence in New Zealand before the time of the accident and his work history, and such other relevant factors as the Corporation thinks fit. ...... (9) Where any period of an earner's incapacity for work does not commence on the date of the accident, and the Corporation is of the opinion that relevant earnings ascertained in accordance with the foregoing provisions of this section do not fairly and reasonably represent the earner's normal average weekly earnings at the time of the commencement of the period of incapacity for work, the Corporation may, notwithstanding the foregoing provisions of this section, determine an amount which, in its opinion, would fairly and reasonably represent his normal average weekly earnings at the time of the commencement of the period of incapacity for work, having regard to such information as it may obtain regarding his earnings before the time of the commencement of the period of incapacity for work and his earnings at the time of the commencement of that period, and the period of his residence in New Zealand before the time of the period of incapacity for work and his work history, and such other relevant factors as the Corporation thinks fit; and any amount so determined shall be treated as if it was his relevant earnings for the purpose of assessing earnings related compensation during the particular period of incapacity for work: The Corporation decided that the appellant's relevant earnings ascertained under s 53(1) at the date of the accident did not fairly and reasonably represent her normal average weekly earnings at the time of commencement of the period of her incapacity for work. Corporation staff may well have considered that the appellant may have obtained a certificate of incapacity simply because it suited her to apply for earnings related compensation once her work had been reduced by two days per week. A client officer noted on the file "I am concerned she is using her incapacity to spend time in the shop", a remark which carries the implication that the incapacity was more imagined than real. The same client officer wrote to Dr Clark on 10 April 1991 inquiring whether he had ever indicated to the appellant that she should reduce her working hours (before giving the 6 March certificate). Dr Clarke's reply implied that he had not. That is where the matter lay for most of 1991. The appellant worked in her daughter's shop where her activities were in the nature of light duties. For the rest of the week she worked on her reduced hours with the RMU until in July 1991 her work with RMU terminated completely. There is no dispute that none of her reduced hours with RMU were caused directly by the injury but they were consequent on the already anticipated winding up of the Unit. The appellant did not receive wages from the work she performed for her daughter but she received equivalent assistance with payment of her mortgage and running costs of her vehicle. There may have been some income tax considerations in those arrangements. In any case, there is no dispute with a Review Officer's finding that the appellant received no earnings from her daughter's business that could be taken into account for the calculation of earnings related compensation. The appellant had been paid no earnings related compensation after March 1991 and she did not take appropriate steps to establish an entitlement. That is perhaps consistent with her having accepted the convenience of working part-time for the RMU and part-time for her daughter. It is consistent also with her having suffered no - 4 - incapacity from work. Perhaps the appellant was not aware of the implications of a delay in addressing the question of her incapacity from work. If she was suffering some incapacity form work, it should have been obvious to her that she could be entitled to receive earnings compensation based on the difference between her full- time and part-time earnings. It is surprising that she did not press for her entitlement. The appellant did not follow the matter up with the Corporation until she took in a medical certificate from Dr Clark dated 20 February 1992 certifying her fit for light duties from the date of the last certificate. The last certificate had been on 30 March 1991 and the Corporation was naturally not inclined to accept at face value a certificate that she had been partially incapacitated for the whole of that time. Even if she had, there was a further barrier to her obtaining back-dated earnings related compensation. Any partial incapacity which she had suffered from 6 March 1991 had no apparent effect of reducing her earnings, for the reason that she was already working only part-time and that the part-time work ran out in July 1991 independently of her injury. Dr Clark wrote to the Corporation on 5 March 1992 as follows: "In reply to your letter dated 24 February 1992. Mrs Clark has suffered from recurrent neck problems ever since her accident in 1990. This has reduced her activity level so that she is unsuited to heavy manual work. Also she would need to take some care while performing prolonged clerical tasks to avoid sitting in an inappropriate position over a period of hours. However, I have never advised her to completely and permanently stop work. In July 1991, at the time of leaving her previous position she was on reduced hours as she was suffering an aggravation of her neck during this time; but I believe also that redundancy was an issue with her departing from her employment. She had a stressful job at that time which also involved a lot of travel and high emotional tension which was aggravating her neck condition (which is why she was on reduced work), but I felt that she had the potential to improve in the future. The decision to leave work was her own although I agreed it would be beneficial to her physical and mental health. I understand that since that time she has been in part/full time employment in a fashion shop. Since leaving her employment in July she has presented with neck problems on several further occasions including August and September 1991. At that time she was referred to Mr Hopkins with a recent x-ray but he felt that things had not changed significantly from when he had last reviewed her earlier in the year. Since then she has been reviewed by my locum in November 1991 and again by myself in January 1992. I feel this woman does have ongoing problems related to her neck which is why I recently signed a certificate stating that she was suitable for light duties only and to avoid heavy lifting etc. However, I would hesitate to say that she is unable to work in lighter duties (which may have included her previous occupation)." Dr Clark's letter indicates that he was not aware of the reasons for her reduction and termination of employment. The letter covered a period of about 19 months and contained general comments about the appellant's incapacity. The Corporation quite reasonably considered that the letter did not establish an entitlement to backdated earnings related compensation. Dr Clark referred to "recurrent neck problems" and noted that she had presented in August and September 1991 and again in November - 5 - 1991 and in January 1992. Dr Clark was cautious in stating that he "would hesitate to say that she is unable to work in lighter duties (which may have included her previous occupation)". It appeared therefore that, except for the specific occasions when he had certified in March, he considered she could work in her previous occupation. There may well be an implication that he considered she could work full-time, in view of the parts of the letter that seemed to indicate he was not aware that her hours had been reduced for reasons apart from her injury. Those inferences are not necessarily to be drawn, but the Corporation was entitled to look at Dr Clark's letter in an unfavourable light for the appellant's application for earnings related compensation. Aside from the question of her ability to do clerical and auditing work, there was a good deal of evidence before the Review Officer that the appellant did suffer functional disability. The appellant described the difficulties she had lifting, carrying, gripping and raising her arms, and she said that she obtained assistance from the Corporation for household help from 22 September 1990 onwards. The appellant's daughter confirmed physical difficulties connected with the injury. But more importantly, the appellant said that she took time off work on 8 October and 20 and 21 November and the morning of 23 November. She said that she had to take time off on 9, 10 and 11 January 1991. She said she was absent for a period from 13 February to 20 February inclusive when she went to Australia. She did not make it entirely clear whether all of those absences were attributed to the injury. The trip to Australia appears to have been something separate. She said that her condition "continued bad" and she visited the doctor on 6 March. She said that Dr Clark told her she should cut down to two or three days and he was unaware that her shorter weeks had just commenced. She told him that it was possible now that she was on three days, and he thought that should help. Contrary to Dr Clark's advice to the Corporation, the appellant said that he had actually asked her weeks before that to cut her work down because it was not helping her injury as she was spending too much time sitting. While dealing with the evidence that the appellant gave before the Review Officer, it is as well to refer to her account of the treatment which she received. She said that after she visited her doctor on 6 September 1990 she was put on a course of physiotherapy which did not help her. She was supplied with a neck brace and she continued to wear that daily to give relief and assist her to remain mobile. She was advised by Mr Hopkins (surgeon) not to wear it all the time or her neck muscles would waste. She was in the habit of wearing it in the morning after getting up to reduce pain, but she did not continue wearing it during the day. She said that the pain was centred in her chest and spread to her shoulders and neck and would become progressively worse if she remained still. She had a problem with writing because it caused shooting pains and pins and needles in her arm which would then go numb. She was able to work in the shop because she could stand or sit or move around, but there were occasions when she could not continue working and had to rest or walk. Concerning her capacity for work, the appellant first referred to her work history. It seems that she had always worked when she could. She had worked continuously from 1978 to 1991. It was unfortunate that she had been kept with the RMU because she understood she was a key staff member in that unit, and she was sidelined from obtaining another permanent position with Ministry of Education when restructuring occurred some time in 1990. It was only because of that career decision and an 6- element of chance that she had a reduction in working hours just a short time before obtaining the medical certificate of 6 March 1990. There is no dispute about those matters. The appellant said that she made a number of work applications during 1990 and 1991. She provided particulars. She said that she disclosed the fact of her neck injury and she became convinced, through the manner in which her job applications proceeded and were declined, that the fact of her neck injury played a significant part, even a decisive part in some instances, in her inability to obtain employment in her former occupation. The appellant's own claim that she is a highly skilled auditor and has the competence, experience and personal qualities required for employment is confirmed by affidavits provided in the review proceedings by Mr K J Shackleton, personnel officer at the RMU, Mr J Bromley, administration officer of RMU, and Mr E J Jaquiery, Director of the New Zealand Correspondence School. Counsel for the appellant submitted the following points, which I have paraphrased for convenience and set out as follows: 1. The appellant suffered a deal of discomfort and some difficulty with her employment during the period between the accident and 6 March 1991. In particular, she was certified unfit and took two days off at the beginning of September 1990. She did not take time off immediately after the accident because she was dedicated to her work. Mr Shackleton and Mr Bromley were able to observe her physical difficulties during that time and they provided evidence at the review supporting the appellant's own account of her decreased capacity for work. The claim is analogous with Ram v ACC which concerned a worker who continued working because his deficiencies were covered by his working colleagues. He obtained medical advice some months after his employment had been terminated for other reasons. The Authority accepted that he had suffered a loss of earning capacity during the period when he had been working with difficulty and was covered by his workmates, and found that if the employment had not been terminated for lack of work the appellant's ongoing problems would in due course have been recognised by his employer and caused his employment to be terminated. The Appeal Authority noted that the term "incapacitated" is defined as meaning suffering from total or partial incapacity, and that the worker in that case had suffered partial incapacity. 2. Mr Shackleton had formed the opinion that if the appellant had continued full- time her ability would have been tested and her physical condition might have been found wanting. That supports the appellant's own evidence that she was working under difficulty and was compelled to take some time off. The claim of partial incapacity is supported also by the evidence that she required and received home help during that period. Counsel refers also to a letter from Dr Clark in which he noted that the appellant had suffered from neck problems ever since her accident in 1990. Her medical record shows that she did attend her doctor about her neck, in particular on 29 January 1991. Her employment involved not only a postural problem but also effects of employment stress. Mr Shackleton referred to the pressure of work at the RMU which he described as organised chaos when the Unit was flat out to complete reorganisation and education administration, and he has it was not a period when staff - 7- could easily take time off. He said Mrs Clark was perhaps a bit too wedded to the exigencies of her position. 3. Counsel submitted that the appellant should not be prejudiced by the fact that the working hours were reduced at the same time as the appellant produced certification of her incapacity. She referred to Mccann v Scottish Co-operative Laundry Association Limited (1936) 29 BWCC 1, [1936] 1 All ER 475 (HL) where it was held that a worker does not lose a right to compensation through incapacity merely because through some extraneous supervening cause a further incapacity is added to the incapacity due to the accident. It is submitted that the reduction in work hours was coincidental and does not prevent a finding that the appellant's earning capacity was reduced. 4. In relation to the period after expiry of the March 1991 medical certificate, it is submitted that the appellant's evidence of ongoing incapacity is supported by Dr Clark's letter that she presented with neck problems on several further occasions, and the certificate which Dr Clark eventually gave on 20 February 1992 certifying with effect from the date of the last certificate. 5. It is submitted that the fact that the appellant was working in her daughter's business provides no evidence that she did not suffer a loss of earning capacity. She was just filling in and she was not subject to the pressures which she would have sustained in a full-time working environment, and for which she was unfit. 6. While working for her daughter the appellant was applying for full-time positions. That is consistent with her earnest endeavour to return to her former level of employment. It should not be regarded at the same time as evidence that she was not suffering any incapacity. 7. The appellant's work for Janus Cleaning Company was only for 4 hours a day, consistent with her ability to perform light work. She was employed in a supervising capacity not carrying out manual work. Throughout the period up to February 1992 the appellant's activity was completely consistent with her being partially incapacitated and was in contrast with her earlier history of full-time. There is no evidence that she adopted that level of activity for her own convenience and for the convenience of her daughter's business. It was submitted that but for the accident she would have continued in full-time employment. 8. Counsel referred to s 53 of the Accident Compensation Act 1982 which requires the Corporation to take into account: (a) the earner's earnings before the time of the accident; (b) the earner's earnings at the time of the accident; (c) the period of the earner's residence in New Zealand before the time of the accident; and (d) the earner's work history and other such relevant factors as the Corporation thinks fit. - 8 - The purpose of taking those factors into account is to assess what would, at the time of the accident, fairly and reasonably represent the employee's normal average weekly earnings. Section 53(9) provides that where incapacity for work does not commence on the date of the accident the Corporation has a power to determine an amount which, in its opinion, would fairly and reasonably represent the earner's normal average weekly earnings at the time of the commencement of the period of incapacity for work having regard to similar criteria. It is submitted that the Corporation is not bound to determine relevant earnings at the later date consequent on s 53(9). The Corporation's overriding statutory duty is to reach a figure which in its opinion would at the time of the accident fairly and reasonably represent the earner's average weekly earnings; Smith v ACC [1993] NZAR 156. Once it has been established that a claimant has suffered a temporary loss of earning capacity entitling to claimant to earnings related compensation, then the entitlement continues so long as the period of incapacity continues. The Court must consider whether, but for the injury, the claimant should have been able to find alternative work. 9. The appellant suffered difficulties at work and took time off in September, October, November and January before her hours were reduced on 25 February 1991. By 6 March 1991 her position had deteriorated to the extent that her general practitioner issued a certificate of unfitness, and she was then unable to gain employment despite applying for many positions within the range and scope of positions that she had held in the past. The case is distinguishable from Re Downey [1983-1984] 4 NZAR 225 and Wicks v ACC [1993] NZAR 162. 10. The Corporation should give primary regard to s 53(1) which provides that earnings related compensation will be payable at the rate which the earner was being paid at the time of the accident, provided it fairly and reasonably represents the worker's average weekly earnings. It is unfair for the Corporation to assess the earnings by taking the year to 3 February 1992 because the Corporation failed to take into account relevant factors regarding the appellant's work history and circumstances. 11. The Corporation has adopted a test involving total incapacity rather than partial incapacity. 12. The Corporation should have fairly reached the view that the appellant's earnings at the time of her accident were the appropriate level of earnings related compensation because she had continuous work for the preceding 13 years and was unable to obtain work once she made further applications beginning in November 1990. There is no reason to believe that her failure was not caused by the fact that she disclosed her injury and prospective employers considered that it rendered her unfit for employment full-time. Counsel for the respondent submitted the following general matters which are also paraphrased or abbreviated: - 9- 1. The appellant did not provide full information to the Corporation when she applied in March 1991. She provided no certificates during 10 months up until February 1992 and the onus of establishing incapacity should reasonably rest upon her 2. The Corporation investigated the claim correctly and appropriately by seeking information from Dr Clark, and later in August 1991 from Mr D J Hopkins, orthopaedic surgeon. Dr Clark's response did not assist the appellant and there was no response from Mr Hopkins. 3. During 1991 the appellant did not advance her claim by providing information or inquiring as to the matters of which the Corporation had to be satisfied. 4. The appellant was occupied with various forms of employment including mainly working for her daughter. Her average was certified by an accountant to have been 30 hours per week over the period from 1 March 1991 to 28 February 1992 5. On 7 October 1992 a meeting was held to settle the appellant's earnings related compensation claim. The meeting concluded on the basis that the appellant would provide further evidence to support her claim but none was provided (except in the form of submissions). 6. Assessment of temporary loss of earning capacity under s 59(2) is determined by deducting earnings from the amount of relevant earnings. Judge Blair considered a similar provision under the 1972 Act in Re Williamson Decision No. 121 [1981] 2 NZAR 514 where he stated at page 518: "..."Loss of earning capacity" is therefore simply the monetary loss incurred by using the measures set out in Section 1 13(2). If a claimant's post-accident earnings remains as high as his relevant earnings, then there is no statutory loss of earning capacity even though the nature of his injury is such (say the loss of a leg) that it is likely that his potential ability to earn will be affected ... The point I am making is that loss of earning capacity has a restricted statutory meaning and is measured by a rigid formula ..." 7. There is no medical evidence supporting the appellant's claim that she suffered any form of incapacity during the time when she was working full-time with the RMU until 25 February 1991, and over that period her earnings were unaffected by her neck injury. 8. There is no evidence that she was suffering any incapacity after the medical certificate of 6 March 1991 which was reviewable after 3 weeks. During that time she remained occupied by forms of employment until February 1992 when she provided a further certificate of incapacity. 9. The appellant's earnings at the date of the accident do not fairly or reasonably represent her normal average weekly earnings at the time the incapacity commenced. At the time of commencement of her incapacity she was working part-time. 10. The Corporation denies liability for compensation for any period after 6 March 1991, but if compensation is payable it ought to be calculated according to s 53(9). - 10 - 11. The appellant worked sporadically for the RMU after her contract ceased entirely on 9 April 1991 until the Unit was disbanded on 30 June 1991. The termination of the appellant's employment was not related to her neck injury and therefore she did not suffer any "temporary loss of earning capacity" for the purposes of the 1992 Act. 12. If it is accepted that the appellant's earnings had reduced for reasons other than her injury by 20 February 1992, she did not suffer any partial incapacity causing a loss of earning capacity from that date onward. There is no evidence that she had ceased working for her daughter because of her injury. She was able to undertake part-time work with Janus Cleaning Company, and did so from February to June inclusive. 13. From 2 June 1992 when the appellant ceased work with Janus Cleaning Company there is no evidence that she suffered a loss of earning capacity. She was certified on 23 April and 14 May 1992 for light duties and during that time she was working for Janus Cleaning Company. There is no evidence of a change in her physical capacity. I reach the following conclusions. The commencement of the appellant's entitlement to earnings related compensation is determined by s 59 of the Accident Compensation Act 1982. The basis of entitlement is that the appellant suffers a temporary loss of earning capacity and that it is caused by incapacity, in this case partial incapacity, due to personal injury by accident. Temporary loss of earning capacity is not judged by reference to difficulties that the claimant has in continuing to work, but it is determined by the test in s 59(2); Re Williamson (supra). There is evidential support for the appellant's argument that a partial incapacity for work developed between the time of the accident and the date of the first medical report on 6 March 1991. She was working under difficulties but did not suffer any temporary loss of earning capacity. "Incapacity for work" and "temporary loss of earning capacity" are not the same. Incapacity for work may occur independently of temporary loss of earning capacity. Temporary loss of earning capacity must be calculated in the manner laid down by s 59(2) beginning from the base of "relevant earnings" calculated in accordance with s 53. The primary measure of relevant earnings is the amount fairly and reasonably representing the claimant's normal average weekly earnings at the time of the accident. The Corporation is also required to take account of the claimant's work history. The appellant's submission is that there was no justification for the Corporation departing from the primary measure and applying s 53(9) of the Act. In effect, the Corporation did not accept that there had been any significant incapacity for work preceding either the certificate of 6 March 1991 or the certificate of 20 February 1992. There is no evidence of any particular event or aggravation of the injury on 6 March 1991, that is just the date upon which the appellant obtained a certificate. If her own evidence is accepted, she had suffered increasing problems over six or seven months following the accident and there would have been no marked difference in her condition on 6 March 1991 than there had been two or three weeks before. But the reduction in her working hours had occurred in February 1991 independently of the - 11 - appellant's injury, and the Corporation considered that her loss of earnings was not the result of personal injury by accident. It is more probable than not, on the evidence in this case, that any incapacity at the time of certification on 6 March 1991 had existed for some reasonable period of time while the appellant was giving first priority to her work and less priority to entitlement to compensation. Even if the incapacity appreciably increased at 6 March 1991, there is a clear element of unfairness in the Corporation departing from the general rule expressed in s 53(1) of the Accident Compensation Act 1982 that relevant earnings consist of the amount which at the time of the accident fairly and reasonably represented the claimant's normal average weekly earnings. I do not think that the Corporation should depart from that primary means of calculation in order to focus on a short period of time when the appellant received diminished average weekly earnings. Of course a central concern for the Corporation was that during 1991 the appellant did not actively seek earnings related compensation and did not provide continuing evidence of incapacity. If she had done that, the uncertainties could have been resolved by a contemporaneous enquiry. The appellant seems to have been at fault in failing to pursue her claim during 1991. The reason for that may well have been that she was optimistic of recovery and was comfortable with part time work while she applied for further full time employment. The Corporation's file indicates that it declined payment in March 1991 because the appellant was fit enough to work part time and she had not been working full time during the week before the certificate was obtained. The appellant did not seek a review of the Corporation's decision at that time. There is more than sufficient evidence to be drawn from the appellant's own evidence, the evidence of her daughter, the certificates and letters from Dr Clark and the affidavits of Mr Bromley, Mr Jaquiery and Mr Shackleton, that the appellant's partial incapacity began soon after the accident and was more or less continuous. The fact that the Corporation provided (home help) is itself evidence of partial incapacity, reinforcing the possibility that she also suffered partial incapacity for work A number of the respondent's submissions are associated with the concern that a certificate given on 20 February 1992 backdating its effect to March 1991 is insufficient evidence to base an entitlement for arrears of nearly a whole year of earnings related compensation. I think that the Corporation is justified in that view. The appellant should have provided continuous certificates if she wished to claim earnings related compensation during 1991. There is no real evidence to support the suggestion that the appellant intended to deceive the Corporation, although file notes indicated concern that the appellant had presented the March 1991 certificate without disclosing that her hours had already been reduced. Before applying s 53 (9) to the appellant's incapacity as it developed in February 1992 the Corporation was required to address the criteria in subs (9). In particular, the appellant's work history and other relevant factors. As counsel has submitted, her work history is of considerable relevance. She had worked full-time in skilled employment until her incapacity advanced to the stage that it affected her ability to - 12 - work. The evidence indicates that the appellant's reduction in income as it stood at 20 February 1992 was directly related to the consequences of her injury. She had applied for other positions from November 1990 onwards. There appears to be no challenge to her evidence of the steps that she took for re-employment. There is no evidence that employment was not available or that she became disqualified for any reason other than the consequences of her accident. Her own view was that disclosure of her injury, or the fact that she wore a neck brace, caused employers to decline her applications in favour of other applicants. In view of her history of full employment, it is reasonable to accept that uncontradicted view. There is no evidence to show that she was personally unsuitable or that persons with her skills were not wanted. Against that background it would be manifestly unfair for the Corporation to consider that by February 1992 the appellant was a part-time worker and only then suffered incapacity for work. The view which is taken by the Corporation focuses mainly on the fact that the appellant's previous employment ceased in stages, first with the reduction of hours from 25 February 1991, then with finishing the RMU contract in April 1991 and finally with the end of her occasional employment in July 1991. The Corporation's approach disregards the fact that the appellant had a history of continuous employment and, but for her injury, would have been highly likely to have established herself in full employment before 20 February 1992. There is little support, beyond mere suspicion, that the appellant elected to modify her working pattern and had by 20 February 1992 accepted a more relaxed and less stressful pattern of employment with less financial return for reasons unconnected with the injury. The evidence to the contrary is persuasive. The Review Officer considered that the appellant's incapacity until February 1992 was minor and sporadic and that she was caught in the unfortunate position where her employer underwent restructuring. In that respect, the appellant's position was similar to others who have lost employment as a result of restructuring, and was an insufficient basis on which to alter the date of incapacity for assessment of relevant earnings. Those findings would be unassailable if the appellant's loss of earnings was attributable only to the winding down of RMU work. I consider that insufficient weight has been given to the evidence of the appellant's skills and experience and the probability that she would have been able to obtain work but for the effects of her injury which had not abated and which she was obliged to disclose to prospective employers. I consider that it was unreasonable for the Corporation to calculate relevant earnings at either March 1991 or February 1992, and that there is no reason for relevant earnings to be calculated at any date other than the date of the accident or shortly afterwards when partial incapacity for work developed while the appellant was still fully employed. I consider that the Corporation was justified in declining earnings related compensation during 1991 when the appellant had not provided evidence of loss of earning capacity determined under s 59 of the Accident Compensation Act 1982. The Corporation was justified in taking the view that the reduction in earnings was caused independently of the appellant's personal injury until it received evidence - 13 - to the contrary. That evidence would have to encompass the degree of her incapacity relevant to employment, and the likelihood of her obtaining employment in her former occupation but for the effect of her personal injury. By February 1992 the Corporation may well have been obliged to accept that there was a market for the appellant's skills and experience but she was unable to work because of her injury. That now requires a further primary decision because the decision to decline earnings related compensation rested on other grounds. The appeal is allowed. The appellant will have costs of $850. DATED at WELLINGTON this 21sr day of NOVEMisER 1997 D A Ongley District Court Judge PU MINUTE OF JUDGE M J BEATTIE Re: APPEAL DCA 26/97 W G BARRETT (PEARCE) -V- ARCIC and I STUART A decision was delivered in the above appeal on the 3rd of November 1997 but the question of costs was overlooked in that decision. Counsel for the appellant has sought costs and I consider that it is appropriate that an award of costs be made in the circumstances. I direct that the respondent, the Accident Rehabilitation and Compensation Insurance Corporation pay the appellant the sum of $700 costs in relation to this appeal. I make no award of costs either for or against the employer. DATED this 2 day of November 1997 Death" MJ Beattie District Court Judge Min.doc KD