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Accident Compensation Cases

Couper v Accident Compensation Corporation (DC, 07/11/06)

Judgment Text

DECISION ON RECALL OF DECISION DATED 9 MAY 2006 OF JUDGE J. CADENHEAD 
Judge J. Cadenhead
The Course of the Hearing 
[1]
I gave a decision in this appeal dated 9 May 2006, and I recalled this decision on my own motion when it was pointed out to me by counsel for the appellant that there were two issues that he desired to address me further upon, namely: 
[i]
With respect to my finding relating to Clause 43(2)(b) that the calculations provided to me had not been provided on the basis described by the decision of Judge Beattie in O'Kane (AI 347/05). 
[ii]
Aspects of medical reports of Dr Ding in fairness need to be clarified. 
[2]
In a letter dated 29 August 2006 in respect to the calculation issue, it is understood that counsel for the appellant accepts that the period of 4.03 weeks, which amounts to 20.15 days, is to be treated as working days over a five day working week. This meant that the appellant's entitlement to holiday leave would have expired on 10 September 2002. In that letter it was stated that it was not envisaged that any evidence was required to be adduced concerning this particular issue. I clarified the position at the hearing in front of me and it was accepted that this particular issue is no longer the subject of contest. Accordingly, the finding at paragraph 48 of my decision stands and is no longer subject to recall. 
[3]
In regard to the second issue, I heard evidence from Dr Ding, and a bundle of documents was produced at that hearing. 
[4]
Dr Ding put in a brief of evidence and was then partially examined orally and was then cross-examined. 
The Parts of Decision Under Attack 
[5]
I set out the relevant parts of my decision that are under attack: 
“[45]
The medical opinion of Dr Ding dated 17 March 2006 throws useful light on this issue: 
‘The question put to me is “whether it is more probable than not but for the medical misadventure in September 2002, Mrs Couper would have returned to some work, either full-time or part-time, within three months of her incapacity in September 2002”
Mrs Couper's Major Depression was deteriorating by August 2002, but as I have indicated in my previous reports, was aggravated by her gynaecological operation and the complication of her bowel perforation. On carefully reviewing my notes over the whole period of time she was under treatment with me, and particularly over the period between August 2002 into the earlier months of 2003, it is my opinion that regardless of the medical misadventure she would have had to leave her teaching position. 
Therefore, I could not state that but for the medical misadventure in September 2002, Mrs Couper would have been able to be maintained in her part-time position through into February and March 2003 and to continue in that capacity thereafter. 
However, the aggravation of her depression by the medical misadventure would have had a determining effect on her not being able to continue at her part-time classroom position from October 2002. It is likely that without the medical misadventure she would have struggled on in her part-time teaching role, probably into the first six months of 2003. ’”
[46]
Dr Ding has said over the period between August 2002 into the earlier months of 2003, it was his opinion that regardless of the medical misadventure the appellant would have had to leave her teaching position. I must say that I have had some difficulty in reconciling this statement with his later statement. On my view after examining all the correspondence arising around the relevant period of time I do not think that the appellant can prove to a balance of probability that for the relevant period of time she was an employee 14 days before 13 September 2002, as she was on unpaid leave. Further she cannot prove that but for the incapacity she would again been an employee within the period of 3 months from 13 September 2002. 
[47]
In my view the appellant does not come within the provisions of clause 43(2)(a). ”
The Evidence of Dr Ding 
[6]
Dr Ding, a psychiatrist for Mrs Couper, gave evidence. He said that the appellant had developed her first major depressive incident some time in 1995. He observed that a major part of the appellant's rehabilitation involved a change to her working pattern, and he perceived the appellant as an extra conscientious person who tended to push herself too hard at work. 
[7]
Dr Ding saw Mrs Couper on 27 March 1998. She presented with a re-intensification of her depressive symptom, and he again saw her on 24 March 1999. 
[8]
By letter dated 17 August 1999 Dr Ding was asked to provide a report to the claims assessor for Tower Health Ltd in respect of a claim for total disability. Dr Ding said that even after the appellant ceased working, her depressive symptoms had deteriorated and her anxiety symptoms had become more prominent. Dr Ding again saw the appellant in March and May 2000. He reported to Tower Health on 17 November 2000 stating that in terms of time commitment at work that the appellant was capable of working up to half time but only in restricted duties, namely, not being responsible for a class. 
[9]
By a letter dated 20 March 2001 Dr Ding noted that the appellant's major problems were in her powers of concentration, attention span, feelings of exhaustion and difficulties in maintaining any work involvement beyond half a day. He noted that she had resumed her half time employment with Cathedral Grammar Primary School but not yet in a classroom situation. In his view focused concentration and attention which was required for a classroom situation were beyond her limits. He said that he would have had difficulty in predicting when she could return to full time work. 
[10]
By mid-May 2002 the appellant was finding it increasingly difficult to function in her part-time teaching role, and attending to her role in the establishment of the school's new library. The school agreed to release her from her teaching responsibilities to devote her part-time employment at the school to library work. 
[11]
Dr Ding reported to Tower Health on 23 August 2002 that from July 2002 the appellant was finding it increasingly difficult to manage the library work even without the teaching responsibilities. In my view, the medical report of Dr Ding dated 23 August 2002 is important and I set out some of the relevant extracts from that letter: 
“1.
Will Mrs Couper be expected to improve now that she is on medical leave and away from the school environment. 
By mid-May of this year, she was finding it increasingly difficult to function in her part time teaching role and attending to her role in the establishment of the school's new library. The school agreed to release her from her teaching responsibilities to devote her part time employment at the school to library work. By that time she was having serious doubts as to whether she could continue in her part time teaching role after the commissioning of the library. However, as usual, she was reluctant to let herself think about the possibility of reaching the end of her career before she turns 60. We did not discuss the question of early retirement and it was her stated commitment that she would review the whole situation when the library was established. 
At that time, there were continuing difficulties, not so much with the new Headmaster, but the Chief Administrator. However, by July these matters were almost totally clarified. This was achieved with the assistance of her husband, the previous Headmaster who assisted Sally as a support person in helping to clarify some of the administrative issues which unfairly impinged upon her. 
Unfortunately, through July and into early March, it was increasingly difficult for her to manage the library work, even without the teaching responsibilities. She was finding it difficult to get through the routine work of cataloguing books due primarily to impaired concentration, attention span, impaired memory and feelings of exhaustion. She would be extremely exhausted by the time she finished work in the early afternoon and could do little more than go to sleep. She would be tense, frequently weepy and in conjunction with this, virtually relegated all of her other activities to her husband with regards to domestic chores and as well as her routine of going for walks and other activities designed to reduce weight and improve her musculo-skeletal problems. 
When I examined her on 6th August 2002, it was my opinion that the intensity of her distress and its impact upon her ability to function, even in her day to day life, was such that I recommended her to be on medical leave. 
I do expect some improvement while she is on leave in that the pressure of work would be relieved. I have not seen her since then and therefore not able to give an opinion as to how effective this has been. Unfortunately, on the basis of my observation of her from October 1997 and since a degree of improvement was able to be obtained in July 2000 with the prescription of the antidepressant Phenylzine, it is my expectation that the core symptoms of her Major Depressive Disorder are unlikely to improve. Perhaps the passage of time may prove me wrong. 
 
4.
Do you think that in time a return to work in a different environment may be an achievable and beneficial outcome for Mrs Couper. 
Unfortunately, in spite of restricting her work entirely to the library, having overcome the tasks of its establishment and merely addressing the maintenance type tasks that are required of a Librarian, her symptoms not only continued to bother her, but became intensified. She was not at that time having any responsibility in teaching and relationship difficulties with senior administrators have been practically resolved. It is almost as if she was able to pull out all steps in order to get her project, which she held with great passion, the commissioning of the library into fruition but at great cost to herself and at this point, resulted in intensification of her symptoms. 
Her capacity to return to work will depend on the extent to which her symptoms could settle. 
I would hope that there will be sufficient improvement that the prospect of return to at least part time teaching, could be seriously considered. However, on account of the duration of her illness, the effort with which she has had to extract from herself to get this far and the fact of the continuing intensification of her symptoms, in spite of not having any teaching responsibilities, are rather in my opinion, indicative of a less optimistic outcome. At best, she should be able to return to part time librarian work or part time teaching at a school. I have some reservations about this, although the question of working as a private tutor should be explored. That is, to work in a much more flexible manner dealing with one or at the most several pupils, but not with a class. ”
[12]
A letter dated 17 March 2006: 
“Thank you for your letter of 17 February 2006 and a copy of the decision of Judge J Cadenhead, District Court, Wellington dated 25 January 2006. 
The question put to me is ‘whether it is more probable than not that but for the medical misadventure in September 2002, Mrs Couper would have returned to some work, either full-time or part-time, within three months of her incapacity in September 2002’
Mrs Couper's Major Depression was deteriorating by August 2002 but, as I have indicated in my previous reports, was aggravated by her gynaecological operation and the complication of her bowl perforation. On carefully reviewing my notes over the whole period of time she was under treatment with me, and particularly over the period between August 2002 into the earlier months of 2003, it is my opinion that regardless of the medical misadventure she would have had to leave her teaching position. 
Therefore, I could not state that but for the medical misadventure in September 2002, Mrs Couper would have been able to be maintained in her part-time position through into February and March 2003 and to continue in that capacity thereafter. 
However, the aggravation of her depression by the medical misadventure would have had a determining effect on her not being able to continue at her part-time classroom position from October 2002. It is likely that without the medical misadventure she would have struggled on in her part-time teaching role, probably into the first six months of 2003. ”
[13]
Under cross-examination Dr Ding conceded that unfortunately in spite of restricting her work entirely to the library, her symptoms not only continued to bother her but became intensified. That is in August 2002 before any medical misadventure had occurred she had reached a stage it was deemed advisable in terms of her medical condition, even though she was only doing library work, that she should cease her employment. On 23 August 2002 Dr Ding said that he had given a certificate to Tower Insurance of total disability. Dr Ding said that the tenor of his advice to Tower in August 2002 was not that she could have struggled on as a part-time librarian from October on through to say December. 
[14]
Dr Ding said that as at August 2002 he would not have known how long a period of total incapacity would have lasted for. It would be a matter of speculation. She was incapable of working when he wrote the certificate in August 2002. The issue of when she could have returned to work was a subjective decision. 
Decision 
[15]
I heard the evidence of Dr Ding on this application for recall. I know that that is an unusual course. In taking that step I was mindful of the limitations upon a recall of a decision as set out in Horowhenua County v Nash (No. 2) [1968] NZLR 632. However, it seemed to me that in view of the way the case had been argued, particularly with counsel for the appellant's submissions that were piecemeal and in email form, in fairness to the appellant it may have been that I had failed to fully direct my mind to the issue which had been argued: Brake v Boote (1991) 4 PRNZ 86. I might say that I have found the evidence of Dr Ding most helpful. 
[16]
In view of that evidence, and set against the background in particular the report of Dr Ding of August 2002, I find that before the medical misadventure the appellant was certified as totally disabled from all forms of work including library work. I further find that at the most it was speculative as to when the appellant could have resumed her duties even as a librarian. I accept that the medical misadventure happening could have intensified or aggravated the magnitude of the appellant's disability. However, it does appear on a careful consideration of all the evidence that it cannot be said beyond a mere possibility, putting aside the medical misadventure, that the appellant would have been able to resume her part-time job as a librarian in the specified time limit prescribed by the legislation. Again, it is a matter of speculation as to what extent the medical misadventure incident impacted upon the mental disability of the appellant. 
[17]
For the reasons that I have given I do not think the appellant on a probability basis can bring herself within the provisions of Clause 43(2)(a) of the First Schedule of the Injury Prevention, Rehabilitation and Compensation Act 2001. I therefore decline to formally recall my decision dated 9 May 2006 on that issue of the case. 
[18]
The end result is that I formally reaffirm my decision of 4 May 2006. There will be no order as to costs. 

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