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Accident Compensation Cases

Paikea v Accident Rehabilitation & Compensation Insurance Corporation (DC, 01/12/94)

Headnote - Brookers Accident Compensation Reports

Judgment Text

RESERVED DECISION OF JUDGE J.W. IMRIE 
J.W. Imrie DCJ
I find that the appeal succeeds. 
Introduction: 
The issue in this appeal is whether the appellant was within s 37 of the 1992 Act, by reason of his personal injury, unable to engage in his employment from 22 June 1990. 
On 22 June 1990 the appellant suffered personal injury by accident to his back while at work. He was lifting a box of aluminium. He was a forklift driver but sometimes had to lift boxes himself The Corporation has a record of a payment for a visit to the appellant's general practitioner, Dr Joe. It appears that no other assistance was claimed at that time. 
On 18 September 1992 the Corporation received a C15 further medical certificate dated 18 September 1992 and signed by Dr Joe. This gave the date of the accident as 22 June 1990. 
On 5 November 1992 the Corporation received a C1 Claim of Injury Form in respect of the injury. The form was accompanied by a C14 first medical Certificate from Dr Joe. This gave the date of the accident as 22 June 1990 and the date first seen by Dr Joe as 25 June 1990. 
The Corporation accepted that the claim had been lodged in June 1990 and paid in about June 1993 lump sum compensation under s 78 and 79 of the 1982 Act. 
The Corporation also considered the appellant's entitlement to weekly compensation. By letter dated 3 August 1993 to Mr Paikea it advised that he was entitled to earnings related compensation for the period 19 July 1990 onward. 
However, on an audit of the file a few months later, it was noted that the appellant had been able to return to his job after the injury and had ceased his employment a few weeks later for apparently non-accident related reasons. Moreover, the Corporation noted that Dr Joe had not seen the appellant again after the accident until April 1991. Accordingly, by letter dated 10 November 1993 the Corporation advised the appellant that in April 1991 he was not suffering from a loss of earnings due to the accident, as he had been on the unemployment benefit since 23 August 1990. The letter advised that the Corporation should not have started paying compensation, and that compensation would cease from 10 December 1993. No refund was sought. 
The appellant applied for a review of the decision. The review was heard on 16 February 1994. The appellant attended the review with his counsel. The Review Officer's decision is dated 21 March 1994. In his decision he set out some of the history of the claim, and referred to two decisions of the Appeal Authority put forward by Mr Hammond. He also referred to Mr Hammond's submissions and said:- 
“The central issue in this case as I see it is that Dr Joe saw Mr Paikea on the same day the accident occurred, that is 22 June 1990. He did not issue a C14 certificate, only a note to the effect for Mr Paikea's employer that Mr Paikea should be off work for a week. Mr Paikea went back to work after a week off and then left his employment of his own volition on 18 July 1990. Dr Joe did not see him again until April 1991 and could only make him unfit for work from that date at which time, Mr Paikea was unemployed. Effectively Mr Paikea was not earning and therefore has no entitlement for earnings related compensation. The Corporation should not have paid weekly compensation to Mr Paikea as stated in their advice letter dated 3 August 1993. Following its review of the file, the Corporation realised its mistake and ceased compensation as from 10 December 1993 under the terms of s 73 of the Accident Rehabilitation and Compensation Insurance Act 1993. 
I am persuaded by the information before me that Mr Paikea is not entitled to receive weekly compensation in respect of his previous employment, and accordingly I must uphold the Corporation's decision of 10 November 1993. 
This application is unsuccessful. ”
At the hearing of the appeal on 28 September 1994 Mr Hammond presented written submissions for the appellant, Ms Zumbach presented written submissions for the respondent, and Mr Hammond replied verbally. I appreciate the thoroughness of counsels' submissions. 
Submissions of counsel: 
In his submissions Mr Hammond referred to the accident on 22 June 1990 when Mr Paikea suffered the back injury. He referred to the evidence given at the review hearing. He submitted that showed that after the accident the appellant went to see Dr Joe and had some physiotherapy and some time off work. After a week off work he endeavoured to carry on and returned to work. He worked for approximately one month after the first week off, and his last day of work was Wednesday 18 July 1990. 
Mr Hammond referred to the reason for Mr Paikea's termination of employment. An “Advice of Termination of Employment” signed by Mr Paikea's manager and dated 18 July 1990 states that Mr Paikea was terminating his employment for the following reasons:- 
“Unable to reconcile differences (with other workers). ”
Mr Hammond referred to Mr Paikea's evidence about the termination of his employment. Mr Paikea said that the form was filled out by his supervisor. He said that at the time he terminated his employment he told his supervisor that all through the period when he had gone back to work he was having problems with his back. He said that at the time he terminated his employment his whole back was “had it” and he could not stand it, and the main reason for terminating his employment was because he could not perform his duties as best he could. He had not gone back to physio because he did not want to take time off from work to go to physio. He said there were problems with other workers. He had been going to a psychologist in Hamilton. He was having psychological problems and that expressed itself with other workers. The back problem was a part of those psychological problems. Every day he came to work he would do things to try to stretch his back. At the hearing before the Review Officer Mr Paikea accepted that he had written on the termination of employment form the words “(with other workers)”
Mr Hammond referred to a letter from Dr Joe dated 30 November 1993 which was produced at the review hearing stating that Mr Paikea would have been given a certificate by virtue of his back injury alone. 
Mr Hammond submitted that the decision of the Review Officer is wrong when it states that Mr Paikea terminated his employment on 18 July 1990 because he was unable to get on with other employees, and when it states that Mr Paikea left his employment voluntarily. Mr Hammond submitted that the evidence showed that Mr Paikea was forced to leave his job because of his back problems which meant that he was unable to do his job properly, and which gave rise to difficulties with other employees. 
Mr Hammond referred to s 40, s 37, s 3 and s 44 of the Act and submitted that the appellant was an employee at the time of the accident i.e. 22 June 1990, and that was the date of his incapacity. 
In her submissions Ms Zumbach set out the background to the appeal, and reviewed the evidence, and referred to sections 135(1), 138(3), 37, 40, and 44(1). She also referred to the decisions in Douglas (27 May 1994) and Allan (18 March 1992). 
She submitted that for the appellant to have entitlement to weekly compensation he must first, in terms of s 37, meet the test of incapacity. She submitted that the appellant does not meet the test of incapacity. He alleged he had been incapacitated from 22 June 1990. but Ms Zumbach submitted there was doubt surrounding his condition as at 22 June 1990. In support of this she made the following points:- 
1.
Dr Joe's medical certificate dated 11 June 1993 was retrospective to 22 June 1990. 
2.
In June 1993 Dr Joe wrote that in October 1990 the appellant gave up work because of his back injury “However, he did not see me at that time so I cannot comment on whether he was eligible for compensation at that time.” 
3.
Dr Joe issued a sickness certificate rather than complete a ACC form on 25 June 1990 suggesting that Dr Joe considered that the appellant's inability to work for those two days was more due to his respiratory tract condition than his back condition. 
4.
The appellant does not appear to have sought treatment for his condition again after 25 June 1990 until April 1991. 
5.
The appellant went on to the unemployment benefit on 23 august 1990, and was on the unemployment benefit through to August 1993. 
6.
Retrospective medical certificates should be treated with extreme caution. 
7.
There are conflicts in the evidence which weaken the appellant's case that he was incapacitated on 22 June 1990. For example, 
(a)
Mr Hooker has reported that the appellant told him that he had to go off the work on the day of the accident to seek medical assistance. However, the employer has recorded that the appellant worked a full day on 22 June 1990. Dr Joe's first attendance on the appellant for the injury was on 25 June 1990. 
(b)
The appellant indicated to both Mr Hooker and Dr Joe that he was able to continue to work for a few months after the injury. However, accordingly to the Advice of Termination of Employment Form the appellant ceased work on 18 July 1990, just 26 days after the injury. 
8.
The appellant indicated at the hearing that he did not sign his termination of employment form which set out that he had left his job for non-accident related reasons, but he did add the word “with other workers”
9.
The evidence does confirm that the appellant suffered personal injury by accident on 22 June 1990, but it also confirms that he was able to return to work on 27 June 1990 and continued to work until 18 June 1990. 
10.
The appellant sought treatment from Dr Joe in April 1991 but continued on the unemployment benefit at that time and appears not to have sought treatment again until September 1992. The evidence does not show what the condition of the appellant was in April 1991 or September 1992. The medical certificates from September and November 1992 seem to confirm on-going back pain but do not address capacity or otherwise for work. 
11.
There is evidence in Mr Hooker's report of 23 April 1993 that the appellant was at that time fit for selected work only. The first clear confirmation that the appellant was fully unfit for any type of work appears to be the medical certificate by Dr Joe dated 6 September 1993. 
Ms Zumbach submitted that to have an entitlement to weekly compensation the appellant must secondly in terms of s 40 be an earner immediately before the commencement of the period of incapacity, and he was not. 
She also submitted that s 44 has no application to this case because the appellant does not meet the criteria in that section. 
Consideration of the Application of s 37 to this Case: 
Section 37 of the Act provides:- 
“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 …  ”
There is evidence that the appellant had an incapacity for employment immediately after the accident on 22 June 1990. For example:- 
1.
The appellant said in evidence at the review hearing that at the time he lifted the box of aluminium he sort of felt a sharp pain in his lower back which he had never felt before. He said he went to see Dr Joe that same day and had some physiotherapy and was off work for a week. 
2.
On 25 June 1990 Dr Joe issued a certificate saying that the appellant was unable to attend work since 25 June 1990 and should be able to return to work on 27 June 1990. 
3.
By letter dated 24 May 1993 the Corporation wrote to Dr Joe asking for a report from his notes including the following information:- 
“1.
Findings on and date of first examination. 
2.
Treatment given. 
3.
Mr Paikea advises that he had to give up his employment due to the injury to his back. I would appreciate your comments regarding this and if this is the case the appropriate medical certification. ”
By letter dated 2 June 1993 Dr Joe wrote:- 
“1.
Finding on and date of first examination. 
Puru was seen on 25 June 1990. At that time he had an SI joint sprain. 
2.
Treatment given. 
He was treated with physiotherapy. 
3.
Puru kept on working at the time of the injury and it was only in October 1990 that he gave up work because of his back pain, however he did not see me at that time so I cannot comment about whether he would be eligible for compensation at that time. Obviously he still has problems with his back pain and I would fill out the appropriate medical certification if you thought that was appropriate. ”
4.
In a letter dated 30 November 1993 to the Corporation Dr Joe said:- 
“Mr Paikea was seen on the 25 June 1990 with a SI joint sprain and upper respiratory tract infection. 
I gave him a note to be off work at the time because of the combination of the two problems. 
However if he did not have an upper respiratory tract at the time I would have given him an ACC C14 for time off work. ”
5.
At the review hearing the appellant said that his back did not really come right but he needed to go back because he was having financial problems at home, and could not afford to be off work. He had to soldier on really because there was no way out of it. He had quite a few problems doing the job he had done before. After a day's work he had pain quite regularly. He was having problems with his back and at the time when he terminated his employment his whole back was “had it” and he could not stand it. The main reason for terminating his employment was because he could not perform his duties as best he could. 
6.
The appellant said that after he left his employment he could not get another job because he was limited in what he could do. He had applied for a few jobs but when he advises that he has a back problem straight away they are not going to hire him. 
7.
At the time of the review hearing his back was worse than when he first had it. He did quite a lot of lying on the floor to ease the pain in his back. There was not much he could really do then apart from mowing the lawn. He could not do gardening because of his back. 
8.
In the Notice of Termination of Employment Form the supervisor had recorded. 
“Puru is an excellent worker and fork lift driver with a high degree of self motivation. ”
9.
In a letter dated 23 November 1992 to the Corporation in support of his application for lump sum payments under s 78 and 79 of the 1982 Act Mr Paikea said that the pain has been on-going since the accident. Physiotherapy relieved the pain only temporarily. The pain was so bad that most times he lay on his back for long periods on hard surfaces. He could not sit in chairs or stand for long periods of time. He could not drive long distances. He slept on the floor a lot to ease the pain in his lower back. Lifting and bending aggravates the pain. In general life he was very restricted through the pain of his back. 
10.
In his report dated 23 April 1993 Mr Hooker, the orthopaedic surgeon, said inter alia:- 
“Prior to the lifting strain on 22 June 1990 Mr Paikea had experienced some, minimal, low back pain associated with heavy lifting and stooping when he worked as a stacker. I believe these symptoms may have been on the basis of the condition noted radiologically in his lower lumbar spine, a left sided spondylolysis. This is a condition that would have antedated the episode of June 1990 and indeed, may well have existed in Mr Paikea's lumbar spine since childhood. It is a condition that renders the lower lumbar spine susceptible to a degree of instability, pain and variable muscle spasm associated with heavy lifting and straining work. 
The episode occurring on 22 June 1990 I believe can be considered to be a significant aggravating injury superimposed on the pre-existing condition and resulting in low back pain that has not settled since that time. 
Currently Mr Paikea has a degree of lumbar spine stiffness as noted but no other clinical abnormality. ”
11.
By letter dated 5 May 1993 the Corporation advised Mr Paikea that his assessment for compensation under s 78 was 7.5% giving a figure of $1,275. Under s 79 the Corporation awarded $5,000 for pain, mental suffering, loss of amenities, or capacity to enjoy life. The maximum was $10,000. Mr Paikea applied to review the award of $5,000 and after further consideration the Corporation increased the award to $10,000. 
On that evidence I would be satisfied that from 22 June 1990 the appellant was, by reason of his personal injury, for the time being unable to engage in employment in which he was engaged when the personal injury occurred. 
It is next necessary to consider a number of circumstances to see if it is more likely than not that the appellant has not been incapacitated since 22 June 1990. 
1.
The employer's records state that the appellant worked a full day on Friday 22 June 1990. However, that does not mean that he did not suffer the back injury on 22 June. 
2.
The accident occurred on 22 June and the appellant says he saw Dr Joe that day but Dr Joe says he did not see the appellant until 25 June. Even if Mr Paikea did not see Dr Joe until the Monday, that does not mean that his back was not injured on the Friday. 
3.
On 25 June 1990 Dr Joe issued a sickness certificate for two days and the record of two telephone messages received by the appellant's supervisor on 25 and 26 June 1990 give the reason for the appellant's non-appearance at work on those days as “sick”. However, in his letter dated 30 November 1993 Dr Joe said that if Mr Paikea had not had an upper respiratory tract infection he would have given him an ACC C14 for time off work on the basis of his back strain. 
4.
The appellant returned to work after a week. That does not mean that he was not incapacitated. His evidence shows that he returned to work out of economic necessity. 
5.
The Advice of Termination of Employment Form records that Mr Paikea terminated his employment because he was unable to reconcile differences with other workers. However, having regard to his evidence at the review hearing I consider that the real reason he terminated his employment was the problems from his back injury. 
6.
The appellant did not seek treatment for his condition again until April 1991. However, it would not be surprising if Mr Paikea felt that nothing was to be gained by seeking further medical advice. 
7.
The appellant did not seek treatment again until September 1992. The same comment applies to this as applied to the preceding circumstance. 
8.
The first clear confirmation that the appellant was fully unfit for any type of work was the medical certificate of Dr Joe dated 6 September 1993. However, I accept the appellant's evidence that he was unfit for work during the period in question. 
9.
There are some conflicts between what is recorded by the doctors what Mr Paikea says. However, it is not surprising that there should be conflicts because of the time that has gone by. 
It is well-known that back injuries such as that complained of by Mr Paikea and the symptoms from such injuries can be faked or exaggerated. Further in Mr Paikea's case the nine circumstances I have just listed mean that his claims should be examined closely. Further he has to prove that it is more likely than not that he was incapacitated in the way he claims over the period he claims by the injury he suffered on 22 June 1990. However, I have decided that the circumstances I have set out do not mean that Mr Paikea's claims are incorrect. 
I am satisfied that the appellant was incapacitated within the test of incapacity in s 37 from 22 June 1990 and that he was an earner “immediately before the commencement of the incapacity” within the meaning of those words in s 40(1) and that he was incapacitated throughout the period in question. The Corporation should calculate his entitlement to earnings related compensation on that basis. 
The appellant is entitled to costs. Leave is reserved to apply to have costs fixed if counsel cannot agree on the amount. 

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