A & D Decorators v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 268 /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN A & D DECORATORS of Wellington Appellant (Appeal No. DCA 79/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent JUDGMENT OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from N King, advocate for the appellant and C Richards, counsel for the respondent with a request that I issue a decision on the papers. The issue on appeal is whether the respondent was correct to attribute the costs of a claim by the appellant's former employee (Randall) to the appellant's work history for the purposes of experience rating. Randall suffered head injuries when he fell from a scaffold in the course of his employment on 24 June 1994. The respondent accepted that the appellant was entitled to cover in respect of injuries he received and in its work injury report of 15 July 1994 the appellant accepted that Randall had suffered a work injury. As Randall was certified as unfit to return to work he received weekly compensation together with other benefits from the respondent. Randall was referred by his General Practitioner to Mr G Martin, Neurosurgeon who reported to the General Practitioner on 2 February 1995: "Mr Randall has improved, but is still tired and sometimes dizzy when he bends down. 2 Though in theory everyone ought to lose their dizziness after concussion my experience is that not everybody does, and that a number of people, even some years later, will feel strange if they have to dive under the desk for a pen. He still has dizziness and I think it is not reasonable that he should be required to work on planks up scaffolding having to reach and balance. I will write to Ms Sutherland, his Case Manager at the ACC and ask if she could look at retraining him for some other job. He does not have a drivers licence at all. Perhaps he could get one and look at employment after that. He should be fit for work such as loading etc. I have not arranged to see him again." On the same day Mr Martin reported to the respondent that: "I talked with Mr Randall today about going back to painting. As you will see by the attached copy of the letter to Dr Bratt, I think it would be best if he did not return to paining (sic) because of a likely permanent impairment of his sense of balance. He is quite fit to do light labouring, though he will tire easily to begin with. He told me he did not have a licence. While it might be possible for him to take up commercial driving (he would be quite fit to do the loading which is the usual problem with commercial driving) after he left I began to wonder whether people who do not have ordinary driving experience can manage very well with commercial driving. Perhaps he would be better in a job not involving driving. I leave this to you however." The respondent obtained an Occupational Therapy report from D O'Sullivan, an Occupational Therapist with Capital Coast Health. That report dated 7 March 1995 indicated that as a result of the accident Randall had decreased speed on information processing, decreased ability to read, decreased balance and co-ordination and activity tolerance, increased irritability to noise, memory impairment and decreased ability to sequence. Ms O'Sullivan noted that Randall wanted to get back into paid employment but it was her recommendation that if he did so he should not work for more than three hours at one time and initially for no more than three days per week preferably with a day between to be used as a rest day. In May 1995 Randall undertook a work trial as a Teacher's Aide for 15 hours per week. This work included supervision and teaching of special needs children. As he was still being certified as unfit for full time work, his weekly earnings were abated. As he successfully completed the work trial Randall began formal training as a Teacher's Aide in October and November 1996 and during 1996 continued part time work as a Teacher's Aide. Throughout the whole period his General Practitioner continued to certify him as being unfit for work other than light part time work. On 10 October 1996 the respondent issued the appellant with an employer claims history notification advising that Randall's claim was the only claim which would be taken into account for the appellant's experience rating assessment. When it received that notification the appellant queried its continued liability for the claim as it 3 understood Randall was working part time. It also notified the respondent that the appellant had offered Randall a job which he had declined. The respondent confirmed that it would continue to attribute Randall's costs for the purposes of the appellant's experience rating assessment. On 25 May 1998 the respondent issued the appellant with an experience rating assessment. The appellant applied for a review of that decision in which it disputed that it should be subject to the continued attribution of the cost of Randall's claim. The Review Officer confirmed the respondent's primary decision. It is against that decision which the appellant now appeals. In submissions, on behalf of the appellant, Mr King acknowledges that Randall was injured on 28 June 1994 when he fell from a scaffold in the course of his work for the appellant. He submitted that the respondent is not empowered to allocate payments to the appellant's experience rating which cannot be attributed to the work injury sustained by Randall on 28 June 1994. He submitted that the respondent has a duty under the Act and Regulations to assist with an injured person's rehabilitation and is not permitted to provide for rehabilitation without the injured party entering into an individual rehabilitation programme. He submitted that no such programme had been prepared in respect of Randall. Mr King submitted further that it was unreasonable to expect the appellant to be financially penalised over a period in excess of four years from the date of Randall's injury. Mr Richards submitted that the costs incurred by the appellant in supporting Randall constituted "qualifying payments" under the Experience Rating Regulations 1993 which it was required to attribute to the appellant. Mr Richards submitted that the respondent recognised its responsibility to rehabilitate Randall and because of the medical evidence it was evident that he had to find alternative employment because he could no longer return to full time employment. He submitted that the respondent had taken effective and efficient steps towards retraining Randall for work as a Teacher's Aide albeit to the limited extent he was available to undertake that work. The issue falls to be determined under the Accident Rehabilitation and Compensation Insurance (Experience Rating) Regulations 1993 under which 'qualifying payments" are defined as: "(a) Means a payment- (1) That the Corporation is able to associate with qualifying claim attributable to an employment, or deemed to be attributable to an employer under regulation 6; and (ii) That is made not later than the last day of the fourth premium liability year following the premium liability year in which the claim date falls; but (b) Does not include such a payment to the extent that it is recoverable under section 114 of the 1982 Act or section 77 of the Act." 4 A "work injury" is defined in section 6 of the Act as: '(1) For the purposes of this Act, "work injury", in relation to any person, means personal injury arising out of and in the course of employment of that person; and includes a cardio-vascular or cerebro-vascular episode where--- (a) That episode is caused by physical effort or physical strain arising out of and in the course of employment; and b) That physical effort or physical strain is abnormal in application or excessive in intensity for the person suffering it. (2) Personal injury that is medical misadventure does not arise out of and in the course of employment unless it results from treatment by a registered health professional on behalf of the employer at a place of employment under the control of the employer." It is clear from the medical evidence that Randall suffered a head injury which will preclude him from returning to full time employment. On the basis of the information on the file, I consider that the respondent provided prompt and efficient assistance to Randall in order to rehabilitate him so far as it was possible, having regard to the nature of his injuries. I do not accept Mr King's submission that it was necessary to enter into an individual rehabilitation programme as a proper occupational assessment had been made which resulted in Randall being able to qualify as a Teacher's Aide. While he is unable to work in a full time capacity, the evidence demonstrates that he is working to the full extent of his capacity. While Mr King's submission that Randall had declined an offer to work for the appellant, I do not consider that that materially alters the situation. Had the appellant been able to offer some form of limited work within his capacity the appellant would still have not been able to do it full time with the result that he would have continued to have received abated weekly earnings, all of which, in my opinion, would constitute qualifying payments for the purpose of the Experience Rating Regulations. I consider therefore that Randall did suffer a work injury, the costs of which are clearly qualifying payments within the meaning of the Experience Rating Regulations and that the decision of the respondent to attribute those costs to the appellant's work history was appropriate. The appeal is dismissed. DATED at WELLINGTON this ZZnd day of September 1999 A W Middleton District Court Judge dca79-99.doc (nr)