Lamb v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 74 /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 VIRGINIA MARYLOU LAMB DCA 218/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 27th day of March 1998 APPEARANCES: Mr C Hutchison advocate for appellant Mr S Condie counsel for respondent DECISION OF JUDGE MJ BEATTIE The issue in this appeal is whether the appellant is, by reason of her personal injury for which she has cover, for the time being unable to engage in employment in which she was engaged when that personal injury occurred. 2 Background The appellant, now aged 50, suffered an injury to her back when she tripped and fell whilst at work. This accident occurred on the 20th November 1990. At the time of this accident the appellant was working as a nurse in a geriatric home. The appellant is a duly registered nurse. The appellant sought cover in respect of her injury and the accompanying medical certificate stated that she had suffered bruising of the spinal cord and spinal shock. She was certified unfit for work for five days. In March 1991 the appellant returned to work part-time and continued to receive make up earnings related compensation. The appellant continued working part-time until she discontinued her nursing job following medical advice in March 1994. In April 1994 she obtained employment with the New Brighton Rugby Football club as Womens Affairs Coordinator working 35 hours a week. She was assessed as being fit to work 8 hours in varied clerical work but that any nursing position would need to be selected and trialed prior to considering them as paid options. In July 1995 the appellant commenced working part-time as a nurse for the Stepping Stone Trust. This is a church sponsored "half way" establishment for psychiatric patients. This employment involved between 16 and 32 hours per week and she continued to receive make up weekly compensation. That employment continued down to the 16th of October 1996 when the Corporation determined that she was no longer incapacitated due to the personal injury sustained in December 1990. 3 The Medical Evidence The first medical certificate completed by Dr Slassor, the appellant's GP after the accident, stated that her injury was "bruising of spinal cord and spinal shock." A subsequent certificate in February 1991 stated "bruising to lower spine and possible damage of facet joints." In response to a further request on the 29th of March 1992 Dr Slassor stated that the current diagnosis was "bruising of spine with quite severe strain of facet joints at L3-4-5." On the 6th of May 1995 John Talbot, orthopaedic surgeon, provided the Corporation with a report on the appellant following his examination of her on the 27th of April 1995. He stated that as a result of xrays she was shown to have narrowing at the L4-5 and L5-S1 disc spaces with osteophytic lipping consistent with well marked degenerative change. Osteophytic lipping is also noted at the T11-12 level. He further stated: "Mrs Lamb has a major problem with disabling back pain resulting in her having to give up her job of 7 years standing as a registered nurse at Windsor House Hospital. I do not have access to her original xrays but I do not consider that the degenerative changes in the current films can all be attributed to the fall on 20th November 1990. It is considered that the most likely effect of the fall was to unmask pre-existing degenerative changes at the three levels in the spine described above." It is noted that the appellant struck Mr Talbot as being a genuine person who was making every effort to help herself and get back into the workforce again. 4 In June 1996 the Corporation required the appellant to undergo assessments by members of multi-disciplinary review team. One of the team Mr John Lester, orthopaedic surgeon, stated: "Examination of the thoraco-lumbar region showed no specific deformity. She moves easily around the room without any evident pain. She does however sit on the floor to put her clothes on because it is easier for her. When she is lying on her back she tends to put her hand underneath her upper lumbar area because it once again makes it more comfortable. Although she can move freely she does not sit for too long because it is uncomfortable and she tends to get up and work around the room. In addition she does not like to turn quickly for she finds rotation gives rise to pain." In summary he stated: "This lady therefore presents with persistent upper lumbar back pain together with pain in the lower lumbar region. She has however modified her life and is coping reasonably well in controlling the discomfort and as has been stated has rejoined the work force even though on a part time basis. From the diagnostic point of view, I think it is a little difficult to know where her pain is arising from because the major problem with radiation around the front of the abdomen rather than into the legs suggests the origin is in the lower thoracic or upper region. I think it is unlikely that there will be any significant change with the passage of time for she has had a considerable period of back pain without any relief. She herself feels that the amount of discomfort is remaining very similar as the years go by but she feels she is managing it with herself more satisfactorily recently." Dr Hugh Burry also reported on the appellant and he stated: "Mrs Lamb damaged her lumbar spine when she fell heavily in 1990. Although no severe damage to the lumbar spine was recognisably, progress over the five years 5 since the accident has been disappointing. This is probably due to the arduous nature of her work, the attrition rate of nurses and aides working with elderly disabled persons in a rest home setting being extremely high. It is therefore appropriate that she has now looked for less arduous work opportunities and her current employment as a psychiatric general nurse may well prove to be satisfactory. Hopefully, she will be able to maintain her active interest in the local rugby club, an important recreational activity for her." Mr Nicholas Kendall, clinical psychologist, also reported to the Corporation: "[S]he is currently working 2 8-hour shifts per week on a regular basis, and reported that she copes with this well. She told me that when she has an extra shift in a week that she still copes well, but when she does 4 nights, that 'I feel like all I have done is work, and home misses out". Later in his report, Mr Kendall wrote: "Mrs Lamb clearly has a moderate capability for work at the present time. She has demonstrated sustainable and reliable performance in her current role, and stated that she copes adequately when working 24-32 hours per week. She has derived considerable psychological benefits from re-entering the work force, and it is anticipated that this will continue with increased participation. If she wishes to work part time in order to balance her other commitments to her family, then it would be appropriate for her to make this a clear choice, rather than continue to be compensated as a potentially full time worker. There are no contra indications to her gradually increasing her hours and participation in work." Subsequently Mr Kendall was asked a specific question "Can Mrs Lamb currently increase her hours in her current employment position as a nurse to full time?" Mr Kendall's response was: 6 "Mrs Lamb reported to me that she was apprehensive about the possibility of undertaking full time work due to her 'obligations as a wife and mother'. In my experience many individuals in Mrs Lamb's situation undergo a process of 'lifestyle substitution' as a result of incurring an injury and then having a period out of the work force. In my opinion this is an entirely understandable and natural consequence of needing to substitute the activity of work, with something else. However, it ultimately results in the need for the individual to make a choice between maintaining the new lifestyle with substitute activities, or learning to regain the skills and habits of a working lifestyle. This situation naturally produces apprehension and concern for the individual and their family. Providing suitable explanations, and accessing emotional support through this transition is generally very helpful. As noted in my report, I believe that Mrs Lamb needs to be encouraged to decide whether she wishes to pursue full time work. Or, whether she wants to maintain her current level of part time due to her family commitments. I am unable to comment specifically on the availability of more hours of work at her current place of employment, other than to say that my impression was that Mrs Lamb appeared dubious that more hours would be available." Similarly Dr Burry was asked that same question and his reply was: "I am not sure what the physical content of her current employment position is. There are many opportunities in the nursing profession for a person with Ms Lamb's problem to work full time without having to cope with heavy lifting and/or sudden and unexpected strains while assisting disabled persons. However, Ms Lamb manages a household, looks after a family member who has a disability and is active in sports clubs so that full time work might be quite difficult for her to cope with." Dr Burry was also asked the question "Can you comment on whether ongoing incapacity is due directly to the original personal injury, or are there other factors 7 presently responsible for Ms Lamb's inability to engage in full time employment?" His reply was: "It is always surprising when what appears to have been a relatively minor accident, i.e. not causing major disruption of the body musculoskeletal system, nevertheless results in long term pain and disability and the reasons for the perseverance of symptoms are often complex and may include psychosocial factors. Aggravating factors in Ms Lamb's case include weight increase which imposes greater strains on the spine, stress related to family problems and depression, if indeed this has been a problem. Chronic pain syndromes are often associated with depressed mood and long continued pain is likely to result in depression while depression enhances perception of the severity of pain. In summary, the nature of Ms Lamb's accident and the damage caused by it would not, of itself, have been expected to result in long term incapacity so that in her case it seems probable that other factors have contributed to her perceived reduction in work capacity. As noted, it is, in my opinion, usually inappropriate for a person in Ms Lamb's age group to work full time in a unit providing care for elderly disabled persons." It is to be noted that for the purposes of lump sum compensation under the 1982 Act the appellant was assessed as having a disability calculated as being 5% of total. Relevant Statutory Provisions "37. Application for incapacity and work capacity provisions -(1) Where the Corporation is required to consider the claim of any person for weekly compensation under this Act- 8 (a) The Corporation shall determined the person's incapacity under section 37A or section 37B of this Act, as the case may require; and (6 ) If the Corporation determines that the person is not incapacitated within the meaning of section 37A or section 37B of this Act, as the case may be, the person shall not be eligible to receive weekly compensation under this Act; and 37A. Determination of incapacity to earners generally -(1) For the purposes of this part of this Act, the Corporation shall determine the incapacity of a person (other than a person to whom section 37B of this Act applies) in accordance with this section. (2) 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 time being unable to engage in employment in which the person was engaged when the personal injury occurred." Decision The appellant is by profession a registered nurse and had for some seven years prior to her accident in November 1990 been employed as a nurse in the geriatric field. It was submitted by Mr Hutchison, her advocate, that the provisions of section 37A of the Act require a consideration of whether the appellant is able again to return to a nursing position in a geriatric environment. I find that such an interpretation of section 37A is far too narrow and gives a far too restricted meaning of the word employment. "Employment" as defined in section 3 means "work engaged in or carried out for the purposes of pecuniary gain or profit." Where a person is a duly qualified registered nurse I find that limiting that qualification to a particular type of nursing would be an artificial limitation. The appellant is a nurse and if she is able to resume her work as a nurse, and in that regard the field of nursing is multi-faceted and some tasks within it are less 9 demanding physically than others, then I consider that no such incapacity can be said to arise within the meaning of section 37A. It was submitted by Mr Condie, counsel for the respondent, that at the time of her personal injury the appellant worked as a nurse (the broad field) who specialised in the care of geriatric patients (the particular field). There is no suggestion that this required special skills or attributes by the appellant or that she was unsuited to other forms of nursing. Indeed the fact that the appellant has so easily settled into psychiatric nursing clearly indicates her suitability for various forms of nursing. He therefore submitted that the employment in which the appellant was engaged when her personal injury occurred was nursing in general rather than specifically geriatric nursing. I agree with that submission as such it fits in with the overall scheme and intention of the Act and in particular the object of facilitating and encouraging claimants to return to work. If the appellant had been a person to whom section 37(B) applied then specific considerations of "work for which the person is suited by reason of experience, education or training or any combination of those things" would have been raised to assess the incapacity or otherwise of the appellant. The medical evidence seems clear that it would be unwise for the appellant to again resume geriatric nursing with the attendant difficulties of lifting elderly patients that such employment would embody, but the appellant has demonstrated an ability to undertake psychiatric nursing and is doing so to the extent that she personally feels prepared to do. It is clearly established that she is limiting her work time as a lifestyle choice and because of a desire to spend time with family commitments and whilst these are to be admired, they cannot be raised as a bar to consideration of her ability to resume full-time employment. Whether she in fact does so is a matter entirely for her. 10 The medical evidence supports the fact of her being able to work providing she is careful and there is ample authority for a person being regarded as being able to undertake pre-injury employment even though the same may involve some minor discomfort or that there are some duties which can no longer be performed providing the work that can be done and the extent of it is acceptable to the employer. The range of the appellant's abilities are acceptable to the employer and this is documented by the manager of Careers Service who in his report states: "Mary-Lou has taken on new work and developed a job for herself which suits her skills and work experience. She has a strong desire to keep learning and thereby broaden her potential for employment. She talked openly about her chances of increased hours within her present employment. She does not seem inclined to push for this at present. It may be appropriate for her to be offered some help to do this by an intervention from her case manager acting on her behalf. If she is as valued as she says she is (and I have no reason to doubt her) then her employer should be amenable to expanding her workload. After all she is offering them a great range of skills from word processing to cooking and psychiatric care." Accordingly then I find that the circumstances of the appellant's injury do not prevent her from being unable to engage in employment in which she was engaged when that injury occurred. In coming to that decision I have not sought to determine precisely what that personal injury was and whether the symptoms which she is presently displaying are a consequence of that injury. The medical evidence is that the present cause of pain is largely brought about by degenerative changes in her spine and indeed the evidence is that those changes were present at the time of her injury. The injury for which she had cover was a bruising of the spinal cord and spinal shock. That is something considerably different from that which Mr Talbot diagnosed in May 1995 and which was disclosed by xrays at that time. 11 As was stated by Dr Burry, the appellant's accident and the damage caused by it would not of itself have been expected to result in long term incapacity so that in her case it seems probable that other factors have contributed to her perceived reduction in work capacity. In the final analysis I find that there must be serious doubts about the appellant's present back problem being in fact the continuation of the injury she received in the fall, but rather signal the onset of degenerative changes. However because I have found that in fact there is no incapacity in any event, the question of whether her accident injury persists to the present day or not does not need a final determination. Accordingly then, the appellant having been determined not to be incapacitated within the meaning of the Act, the decision of the Corporation to cease payment of weekly compensation was correct and this appeal is dismissed. DATED at WELLINGTON this zon day of April 1998 M J Beattie District Court Judge Lamb.doc KD