Merritt v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 34 95- AT WELLINGTON DCA No. 171/94 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to 47/94/0407. Section 91 of the Act BETWEEN W.F. MERRITT APPELLANT AND THE ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Heard at Auckland on: 8 December 1994 C.A. Wilson as counsel for the appellant N.P. Lucie-Smith as counsel for the respondent Date of Decision: 20 MARCH 1905 RESERVED DECISION OF JUDGE J. W. IMRIE I have decided to revoke the Corporation's decision and allow the appeal. 2. The Issue: The issue is whether the Corporation was correct in cancelling the appellant's weekly compensation pursuant to s.73(2) of the Act on the grounds that she unreasonably refused or failed to comply with an individual rehabilitation programme. The History: The appellant sustained a back injury on or about 1 September 1992 while lifting a patient in the course of her duties as a nurse at Middlemore Hospital. She was declared unfit for work until 16 November 1992 when she was declared fit for selected duties. The appellant returned to Middlemore Hospital working four hours a day in the orthopaedic ward. However, despite the reduced hours and various courses of treatment for her back she was unable to continue with nursing. By C15 dated 8 March 1993 the appellant was certified as unfit for any type of work for eight weeks. By C15 dated 4 May 1993 the appellant was certified fit for selected duties that involved no lifting or prolonged standing. By letter dated 15 April Dr Paterson wrote to the hospital advising:- "Wendy has a significant lumbar back injury which to date has not responded as well as we would like to the various therapeutic options we have tried. Whilst one can never predict the future of these types of conditions, it would seem highly unlikely that her back would tolerate the demands of regular or even modified nursing duties now or in the future. 3. It is my recommendation that she attempt to obtain some alternative form of employment and if at a later date her condition does stabilise we can at that time address the issue of whether or not she should attempt to return to nursing." By an undated letter following a meeting on 7 May 1993, the Senior Rehabilitation Co-ordinator at the Corporation wrote to the claimant advising:- "This letter confirms the Corporation's approval to fund your retraining into clerical duties. The understanding is that you will commence retraining on 24 May 1993 under the direction and guidance of Iris Catt the ward clerk co-ordinator at Middlemore Hospital. In addition to continuing your weekly compensation the Corporation will pay your transport expenses at the rate of $75 per week. I have enclosed your programme for your signature and ask that you return the blue copies to me at your earliest convenience." On or about 24 May 1993 an individual rehabilitation programme approved by the Corporation was agreed to by the appellant. It contained the following stages:- "1. Complete back programme 20/5/93. 2. Commence retraining as a ward clerk at Middlemore Hospital 24/4/93. 3. Following retraining arrange work trial as clerk." 4. There is on the Corporation file a note dated 21 September 1993 from the Rehabilitation Co-ordinator at Otahuhu which reads:- "IP came to office. She is looking to move into Real Estate rather than the current job she has. Feels that her back is not coping with all day pressure. She is doing more than eight hours to finish all her work as she job shares and does not like to leave unfinished work for the Monday. There is a Real Estate course at Carrington commencing 2.10.93, Saturdays and Monday-Wed. evening. 31/2 weeks. IP wants to do this course and probably will for herself." There is a further memorandum dated 11 January 1994 from the Rehabilitation Co-ordinator. It reads:- "IP came to office on her request. She has been accepted for a social worker degree at Manukau office. This course involves a year full time 9.00 a.m. to 3.00 p.m. which IP is wanting ACC to fund. The second year is part-time Thursday evenings and Saturday mornings. She is not assured of a job at the end of this time. Miss Merritt states that she is having difficulty with her part- time job at Middlemore Hospital and her doctor wants her to finish it anyway. She got extremely upset and said that she would get a lawyer to fight this as she feels that it is the ACC's responsibility to fund her in this course, she was forced into doing the retraining as a ward clerk, that position is not something she feels that she can physically cope with and she is going to do this course regardless. I have asked her to put in writing what she requests from us." 5. In a letter dated 16 January 1994 the appellant wrote to the Corporation setting out her history in nursing and in working in a clerical position at the hospital. She said that she still lacked a lot of the skills necessary to efficiently do the job she was employed to do, and that causes stress which does not help her problem with pain. She said she would like to do a social worker course at Manukau Polytech. She set out particulars of the course. She said she would like ACC to fund fees for the Manukau Polytech course for a diploma in social and community work, and to continue to pay her wage-related weekly compensation. By letter dated 2 February the Rehabilitation Co-ordinator wrote to the appellant as follows:- "Thankyou for your letter of 16th January 1994 requesting funding for Manukau Polytechnic courses and continued weekly compensation whilst attending this course. On the 24th May 1993 an Individual Rehabilitation Programme was drawn up between yourself and Shelley Nicholson, the Senior Rehabilitation Coordinator. I have enclosed your copy for your reference, signed by yourself and the Senior Rehabilitation Coordinator. It contained the following stages. 1) Complete back programme 20/5/93 2 ) Commence retraining as a Ward Clerk at Middlemore Hospital 24/5/93 3) Following retraining arrange work trial as clerk You are entitled to one years Vocational Rehabilitation whilst retraining, and this retraining commenced on the 24/5/93. As such you are still in this programme until the 24/5/94. 6. As the Corporation is already retraining you in a certain type of occupation, there is no responsibility to retrain in another field. I have spoken with Dr Jeff Okpata at Middlemore Hospital, who advised that there maybe a possibility of the position your job shared previously becoming a permanent full time position. In which case you would be eligible to apply for this position. As you indicated to me on the 26th January 1994, you have now terminated your position with Middlemore Hospital. This means that you are no longer complying with your Rehabilitation Programme and this situation will now have to be considered.' On the same day the Corporation wrote to Mr Farr as follows:- "RE: Wendy Merritt DOB: 30/10/48 DOA: 1/9/92 Thankyou for agreeing to see Ms Merritt on Thursday 3rd February 1994 for a medical assessment. Ms Merritt is a qualified enrolled nurse and injured her back on 1.9.92 while lifting a patient. In November 1992, Ms Merritt attempted a graduated return to her occupation as a nurse, but finally on 15th April 1993 her general practitioner recommended that Wendy seek alternative employment as he did not see her returning to nursing. On the 24th May 1993, Ms Merritt commenced retraining as a ward clerk with Middlemore Hospital under a Vocational Rehabilitation Allowance. This programme is for a year and is due to finish on the 24th May 1994. The job description of this position involves. Reception duties: answering telephone, greeting 7. patients arriving for admission. answering general enquires to do with the ward. Filing and Maintenance: Filing patients charts, Checking charts and updating if necessary Patient Xray & Notes: Ensuring that all Xrays & notes are available forward rounds reviews and other appointments the patient may have. Patient appt: Ensure these are followed up. Computer Work. Admissions & Discharges. General office: Opening mail, stationary levels stocked. This position was two days per week and was a job share position involving 16 hours per week. Ms Merritt has recently been accepted to do a Social and Community Work Course at Manukau Polytech for this year. She is wanting the Corporation to consider this course by funding it and continuing with her weekly entitlement from the Corporation. Today, I would appreciate your clinical findings or whether or not Ms Merritt could complete the tasks of her job description listed above with her current injury. Is he physically capable of doing this job. Could she possible extend the hours to a full time position doing the same employment, ie Ward Clerk at Middlemore Hospital. Is it reasonable to say that Ms Merritt will cope with a course 5 days per week, 22 hours per week, easier than her previous 16 hour per week position, two day only clerical position. I look forward to your report, any comments you may have and invite you to send your notation with your report." 8 . By letter dated 3 February 1994 Mr Farr reported to the Corporation as follows:- "I saw this lady at your request on the 3rd February 1994. HISTORY She told me that she had sustained an injury to her back during the course of her work as a nurse in Ward 16 in September 1992. She ceased work in March 1993 because of back pain. She has hoped that over a period of time her back will settle to the point that she can continue nursing but has not reached that point and has accepted that she may not be able to do the work of an enrolled nurse. She had done clerical work before and a job became available in the medical superintendent's office at Middlemore Hospital and she was able to fill in while the secretary was away on leave for seven weeks. She then did a clerical job as a ward secretary in the Assessment and Rehabilitation Geriatric Unit at Middlemore Hospital. She worked some two days a week but found that there was a lot of pressure on her and she was unable to manage this job. She stopped work in that unit last week, she hopes to become a social worker and plans to start at Manukau Tech. next week on the Social Worker course. COMPLAINTS She is troubled by low back pain which she describes as constant and which is aggravated by prolonged sitting and prolonged standing. It is eased somewhat by walking but her back becomes painful if she walks long distances. Although there has been some alteration in feelings in her legs at times she does not have sciatica. She has been through a back rehabilitation course, has seen an orthopaedic surgeon at Middlemore Hospital and has had a number of investigations including a CT scan and has an appointment to attend the Pain Clinic next week. She seemed to sit comfortably and move freely, she is unwilling to bend her back bending from the hips and clearly has 9. mechanical back pain which is likely to be due to degenerative joint disease in the lower lumbar spine. In reply to your letter of the 2 February 1994 in which you outlined the job description of her previous Middlemore job I would again point out that she has now ceased this work so the matter of whether she can do 15 or 22 hours a week at that job no longer is relevant. It is apparent however on questioning her that it was not so much the detail of the job description which caused her distress but rather the pressure of work. She hopes to retain in a job in which she finds greater job satisfaction and which retains the ability for her to move about freely and not have to sit for prolonged periods. The process of re-training as a social worker and the subsequent work involved in practising as a social worker is so entirely different from her previous work that I am unable to say at this stage whether her back will allow her to carry out the work but she does in my opinion have some limitations and is certainly not suitable for work involving prolonged sitting, driving long distances, bending or lifting. It would seem likely that she could work 22 hours a week if there was less pressure on her and I believe that it is to her benefit to retrain in an occupation which would give her greater job satisfaction." By letter dated 8 March 1994 the Corporation wrote to the appellant as follows:- "The Corporation has considered your continuing entitlement to weekly compensation as a result of your accident on 1 September 1992. In reconsidering your entitlement, the Corporation must pay heed to Section 74(2) of the Accident Rehabilitation and Compensation Insurance Act 1992. This section states "The Corporation shall, and may, upon the unreasonable refusal or failure of any person to comply with any requirement made 10. under any provision of their Act relating to any claim decline to make any payment under this Act." The Corporation has been advised that you have not complied with your individual rehabilitation programme to retrain as a ward clerk at Middlemore Hospital. We also note that you had enrolled at Manukau Polytechnical Institute for a Social Worker course. As this was not a part of your individual rehabilitation programme requirements we must advise cessation of your weekly compensation under Section 73. Please note that your weekly compensation will cease as of 24 May 1994. We still require a medical certificate up to the 24 May 1994 for you to be paid. If you are not satisfied with this decision, or if there is something you do not understand, you should contact us immediately and discuss your concerns. We will explain the decision and will explain your right to ask that the decision be reviewed. If you do want a decision to be reviewed a request must be made in writing using a special form which is available from our office. The written request for a review must be received within three months from the date of this letter. " In her application for review dated 20 April 1994 the appellant said that she did not agree that she had been unreasonable or refused or failed to comply with the programme. The review was heard on 20 June 1994. The Review Officer issued a fifteen page decision in July 1994. He upheld the decision of the Corporation. In his decision the officer set out a number of documents from the Corporation file, including a number of the file notes and letters to which I have already referred. He referred to the evidence of Ms Merritt at the 11. review hearing, and the submissions of her advocate. He referred to s.73(2) of the Act, and said:- "The Corporation have ceased Ms Merritt's compensation on two grounds: 1. That she acted unreasonably in giving up her job at Middlemore Hospital, and 2. That she acted unreasonably in taking up the social work course. Having heard Ms Merritt's evidence and examined all the evidence on the file, I accept, as I told her at the hearing, that her back as she says caused her considerable pain while she was working at Middlemore Hospital. It is clear that the back pain was not the only reason why she left the job at Middlemore Hospital, as I think Ms Merritt would agree. However, it appears reasonable to conclude that the back pain alone was sufficient to have made it difficult for Ms Merritt to have continued with her job. Having found that it was not unreasonable that Ms Merritt's back pain was sufficient to have made her job untenable, I now turn to whether it was unreasonable of her to have left the job and to have taken up the social work course. In my view, this course of action can be described as unreasonable. Ms Merritt is an intelligent woman and I believe it is reasonable to find that she clearly understood the requirements of her individual rehabilitation programme when she signed it. During the 8 months she worked at Middlemore Hospital she approached the Corporation only once, to say that her back was causing problems and she wanted to do a real estate course. No medical evidence was produced to support this and it appears that Ms Merritt made no effort to renegotiate her IRP. Although Ms Merritt now states that the job did not amount to retraining, she made no effort to convey this to the Corporation until she had decided to leave the job and take up the social 12. work course. Had she approached the Corporation earlier and registered her concerns more fully, I believe the Corporation would have been amenable to renegotiating the individual rehabilitation programme, as it is clearly not in the Corporation's interests to pay for vocational training which is not achieving its purpose. In my view, Ms Merritt, by signing the individual rehabilitation programme and by not attempting to renegotiate it, accepted the terms of the programme and is bound by them. By her own admission she was well aware that in taking up the social work course the Corporation would be likely to cease her compensation. Bearing all the above factors in mind, I find that the Corporation made the correct decision in ceasing compensation under Section 73(2) of the Act and this application is therefore unsuccessful. Legal costs of $270.00 are awarded." Appeal Hearing: At the appeal hearing on 8 December Ms Wilson presented written submissions and expanded on them verbally. In her written submissions Ms Wilson reviewed the background to the appeal. She referred to sections 18, 20(2), 20(3), 22(2) and 73(2). Ms Wilson submitted that the issue was whether the cessation of the job at Middlemore Hospital constituted an unreasonable failure or refusal to comply with the provisions of the appellant's individual rehabilitation programme. She said that the Review Officer concluded that the appellant's decision to leave the position at the hospital was not unreasonable, and once 13. this conclusion was reached the question whether the appellant had unreasonably failed or refused to comply with her individual rehabilitation programme or any other provision of the Act in terms of s.73(2) was resolved. However, the officer then proceeded to consider another matter, namely, that of the reasonableness of the appellant's decision to take up the social work course. To embark on an enquiry into that matter was to take into account a matter which was no longer relevant in determining the reasonableness or otherwise of the failure or refusal in accordance with s.73 (2). Ms Wilson said that the respondent was provided with a C15 dated 17 February 1994 which certified the appellant unfit for work for thirteen weeks and Mr Farr's report of 3 February 1994 recognised the contribution of the pressure of the clerical job to the appellant's back problems. She submitted that it was not open to the Corporation to substitute its own opinion as to the appellant's fitness to continue in the position until 24 May 1994, when there was sufficient medical evidence indicating her lack of fitness for the position. Ms Wilson further submitted that the question whether the appellant ought to have attempted to renegotiate her individual rehabilitation programme at an earlier stage was no longer relevant once the conclusion had been reached that she did not unreasonably quit her clerical job. Whether the appellant had a duty to attempt to renegotiate her individual rehabilitation programme was immaterial in light of her inability to continue in the clerical job. It is a matter of speculation whether she would have been able to continue working as she had actually been retraining as a ward clerk. 14. In her oral submissions Miss Wilson made the following points:- 1. The Corporation did not comply with its own policy document relating to rehabilitation schemes, for example, putting reasons in writing and meetings. 2. Had the Corporation been provided with sufficient medical evidence or put on notice that the appellant was unfit for work that would have been better. 3. The main matter for consideration was the appellant's fitness for the job. The Review Officer refers to only one contact between the appellant and the Corporation about her programme but there are two file notes and a letter after several phone calls referring to the pain the appellant had. Accordingly, there was more than one contact. The Review Officer says that there was a duty on the appellant to re-negotiate the rehabilitation programme but the record shows in effect that the appellant was attempting to do that. 4. The appellant was not in fact being retained pursuant to the rehabilitation programme. The individual rehabilitation programme that she is said not to have complied with was inconsistent with what in fact her duties were. 5. There was very little interest taken by the Corporation in how the appellant was getting on in the programme. It was left very much to the appellant. She stuck at the job and tried to carry it out even though it was not appropriate to her physical condition. 15. In his written submissions on behalf of the Corporation, Mr-Lucie-Smith reviewed the background to the appeal. He said that the letter dated 17 January 1994 from the appellant's general practitioner did not contain anything which said that the appellant was unable to do the work of a ward clerk. He referred to the definition of the term "rehabilitation", sections 18, 22, 23, 24, 25 and 73(2) of the Act. In connection with s. 73(2) of the Act he submitted that the test of unreasonableness was objective that the appellant was warned of the likely consequences of her failure to complete the vocational rehabilitation course prior to her resigning her position at Middlemore Hospital, and her doctor has not certified that the work she was doing was beyond her ability, having regard to her back injury. Mr Lucie-Smith submitted on an objective basis the appellant's refusal to complete the vocational rehabilitation programme was unreasonable having regard to these circumstances:- (a) There is no medical evidence to show that the appellant was unable to undertake the work as a ward clerk as a result of her back injury. (b) No attempt was made by the appellant to talk to her employer about the stresses involved in the work, in fact she refused to allow the Corporation to contact her employer. (c) The employer was under the impression that the appellant as more interested in doing the social work course than completing the job. 16. (d) The appellant's expectations in respect of the social work course appeared to be unrealistic in that only a month and a half had passed before she gave up the course. (e) The appellant terminated her employment despite being warned of the consequences and without making any investigations as to whether she would be able to cope with being trained in social work or undertaking the work of a social worker. In reply Ms Wilson submitted:- 1. Mr Farr's report cannot be read as saying that the appellant was fit for work. The Review Officer accepted that it did not reach a conclusion. 2. The clerical job was not that of a ward clerk, the position was a clerical position with a lot of filing. She questioned of whether that job was a rehabilitation programme within s.22. The appellant saw the social welfare programme as more consistent with her past experience but it proved she was unable to carry it out. 3. When it proved that it was not unreasonable for the appellant to stop the job at Middlemore because of back pain that should have been the end of the question. 4. The appellant had a strong possibility of a job at the end of the social work course but it proved that she was not physically up to the social welfare course. 17. 5. If the appeal is allowed the appellant would have a further year of rehabilitation and the opportunity of a better programme. Consideration: For the purposes of this case s.73(2) reads:- "The Corporation shall, ... upon the unreasonable refusal or failure of any person to - . . . (c) Agree to, or comply with, an individual rehabilitation programme - decline to make any payments under this Act." The test of what is unreasonable is objective. I have not been referred to any provision placing the burden of proof on the appellant. On that basis the Corporation has the burden of proving that the failure or refusal of the appellant was unreasonable. The standard of proof required would be on the balance of probabilities (but keeping in mind the importance of the decision of the appellant). In any case I am satisfied on the evidence of the appellant that her refusal or failure to comply with the rehabilitation programme was reasonable. On the evidence I am satisfied that she could not carry on in the job because of the pain in her back. Indeed the Review Officer said that it appeared reasonable to conclude that the back pain alone was sufficient to 18. have made it difficult for the appellant to have continued with her job. Accordingly, it was reasonable for her to leave the job. With reference to the points raised by Mr Lucie-Smith:- (a) No medical evidence. In his report Mr Farr said that the appellant told him that she worked two days a week but found there was a lot of pressure on her and was unable to manage this job. He said that she was troubled by low back pain which she described as constant, and which was aggravated by prolonged sitting and prolonged standing. It was eased somewhat by walking but her back became painful if she walked long distances. He said that he was unable to say whether her back would allow her to carry out the work of a social worker, but she did have some limitations and was certainly not suitable for work involving prolonged sitting, driving long distances, bending or lifting. He said it would seem likely that she could work 22 hours a week if there was less pressure on her, and he believed that it was to her benefit to retrain in an occupation which would give her greater job satisfaction. The appellant in this case does not need medical evidence to establish her claim that she could not carry on with the job because of back pain, her own evidence is sufficient. However, what Mr Farr says supports her evidence. 19. (b) No attempt to talk to employer. If she made no attempt to talk to her employer about the stresses involved in the work, that is of no significance. She was familiar with hospital routine and its demands. If she decided not to talk to her employer about the stresses involved in the work, that decision cannot be criticised. (c) More interested in social work course. It may well be that the appellant was more interested in doing the social work course than in completing the job. The reason for that was that she was unable to carry on in the job. (d) Social work expectations unrealistic. The fact that the appellant's expectations in respect of the social work course may have been unrealistic does not mean that it was unreasonable for her not to stay in the job. (e) Terminating work despite being warned of the consequences. The fact that the appellant terminated her employment despite being warned of the consequences does not mean that it was not reasonable for her to terminate her employment. 20. Decision: The result is that the Corporation's decision to cancel on the grounds that the refusal or failure of the appellant to complete the course was unreasonable is revoked and the appeal is allowed. The Corporation should re-assess the appellant's entitlements on that basis. The appellant is entitled to costs. I anticipate that agreement can be reached on costs. If not, leave is reserved to apply to me to have the sum fixed. sir. . . ... ............. (J.W. Imrie DCJ)