Davies v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 86 /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ANTHONY ABRAHAM DAVIES of Hastings Appellant (Appeal No. DCA 364/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD at NAPIER on the 26th day of March 1998 APPEARANCES A J Coleman for appellant J D Palmer for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the respondent was correct to decline the appellant's ongoing entitlements under section 73 of the Act. The appellant consulted Dr Savage on 22 December 1989 because of back pain. In a certificate issued by Dr Savage, it was noted that the appellant had suffered an injury while employed at the freezing works on 14 December 1989. In January 1990 the appellant was notified that he was entitled to earnings related compensation which was backdated to 27 December 1989 and continued to 28 March 1997. It appears that 2 the injury had been caused when he slipped on a wet floor and a slab of meat pushed him backwards against the wall and door of a truck. The appellant had previously suffered an injury sometime during the 1970s and this evidence came to light in reports from specialists following the 1989 injury. In an Advice of Injury Form, in relation to his 1989 claim, the appellant had stated that he had suffered an accident on 3 April 1973. In a report dated 2 July 1996 from Mr Jones, an Orthopaedic Surgeon, there is a statement that the appellant had "an injury at the age of 16 in 1973 (which) was almost certainly an acute overload of this abnormal segment resulting in an acute episode of mechanical back pain which settled". In an earlier report of 7 May 1990, Mr Jones had also noted that at the age of 16 the appellant had suffered an acute episode of low back pain when shifting heavy wool bales. A similar reference to the 1973 injury is made by Mr Bayliss in a report of 5 May 1993. Mr Jones's subsequent report in July 1996 concluded that there was an "underlying inflammatory spinal condition developing, unrelated to accident." The appellant was also examined by Mr Phillips, an Orthopaedic Surgeon whose opinion was: "It is my opinion that there was in fact a disruption of the lowest lumbar disc at age sixteen. This has gone onto stability and degenerative changes have progressed following this. He now demonstrates typical unstable symptoms with discomfort with sitting and this is in keeping with his pain distribution. I believe the problem is mechanical and not inflammatory. It is a direct result of the injury in 1973. There would have been aggravating injuries causing further disc injuries with his various jobs. This is, I believe, the main problem. He would have perhaps had secondary strains at the thoracolumbar level due to mechanical incompetence lower down." On 27 February 1997 the respondent notified the appellant that his earnings related compensation had been terminated. The appellant applied for a review of that decision. In his application for review, he stated that he was physically fit in 1985 when he had joined the New Zealand Armoured Corp and that he suffered a definite injury in 1989 and not 1973. He said that he left school in 1973 and worked for 11/2 years before going to the Tomoana Freezing Works where he injured his back and was subsequently on ACC as a result of which he was in receipt of earnings related compensation. In her decision, the Review Officer noted that the appellant in his evidence before her endeavoured to establish that the original injury suffered by him had occurred after 1 April 1974 when the Accident Compensation Act 1972 came into force. The Review Officer concluded that she was not satisfied that had it been established that the appellant suffered a back injury in 1974 or 1975 for which he had cover under the Act. She concluded that on the basis of the medical evidence, the appellant's ongoing 3 problems were the direct result of an injury in 1973 and consequently the respondent was entitled to cancel all entitlements under section 73(1) of the 1992 Act. It is against that decision which the appellant now appeals. At the review hearing Mr Coleman called evidence from the appellant and from Mr C T Wainohu and from Mr W Hape. The appellant said that he had always had problems remembering when the first accident occurred. He said that his only recollection was that it had occurred sometime near his birthday, which is in November, he having been born on 19 November 1957. He produced a certificate from the Headmaster of Hastings Boys' High School which confirmed that the appellant was a pupil at that school between 1 February 1972 and 8 February 1973. My impression of the appellant was that he was truthful but obviously had had little education and had a limited ability to recount historical events. He said that when he left school, at the age of 15, he was fortunate to be able to obtain work with his uncle, Mr Wainohu who had a shearing gang. The appellant also stated that he was in error in giving the date of the first accident as being when he was 16 because he found it difficult to actually recall when it occurred although he knew that it had occurred at the freezing works. Mr Wainohu stated that because of their relationship he was able to give the appellant work and that he worked with his gang immediately upon leaving school in February 1973 until October 1974. He clearly recalled that the appellant had left school to take up that job. He could not recall any accident being suffered by the appellant during his time with the shearing gang. Mr Hape told me that he had provided a statement for the Review Officer confirming that he recalled that the appellant had taken a job at Tomoana Freezing Works during the 1974 - 1975 season. He said that the season commenced on 1 November 1974 and that he was the foreman of the gang in which the appellant was employed. He recalls the appellant injuring his back while shifting salt bags as a result of which he informed the appellant that the then recent change in law which brought the Accident Compensation Act into being entitled the appellant to be off work and to receive wages. In his capacity as foreman, he advised the appellant to make the necessary application. Mr Coleman submitted that the basic issue is whether or not the accident, which the medical evidence establishes has been the cause of the appellant's current problems occurred at Tomoana in January 1975 and not in 1973 as the appellant had previously asserted. I am satisfied on the evidence now available that the appellant was quite genuine in the mistake he made in stating that it had occurred in 1973. I am satisfied that he repeated that date when he saw the various medical specialists because it was the only date he recalled having given. However, on the evidence now available it would have been impossible for him to have been at the Tomoana Freezing Works in 1973. His evidence was that he knew the accident happened after he had had a birthday and that it had happened at Tomoana where he did not start work until November 1974. I find on the evidence that the accident occurred in January 1975 and not in 1973. The appellant is therefore entitled to cover under the Accident Compensation Act 1982 and the decision of the Review Officer must be revoked. I consider that the appellant is entitled to a reinstatement of his earnings related compensation from the date on which they were ceased. The appeal is therefore allowed and the file will be returned to the respondent to make the necessary assessment. There will be costs to the appellant of $800 together with the witnesses's expenses of $50 representing as half day for each of the witnesses together with mileage at the usual rate paid for attendance by witnesses at the District Court. If counsel are unable to agree on the figure, leave is reserved to make further submissions on that issue. DATED at WELLINGTON this | S day of May 1998 A W Middleton District Court Judge dc364-97.doc (nr)